^■^ 


< 


o 


%a3AINfl-3W^ 


^.{/OJIIVDJO^ 


aWEUNIVERJ/a 


•<rJ^]>^'•^o^^'^ 


v^>;lOSANCElfj^ 


3AINn3WV 


^.OFCAIIFO/?;!;;, 


;5    >-^  r      ^    c^' 


-< 


^^IIIBRARYQ^ 


^d/OJilVDJO^ 


AMEUNIVERV/, 


^(tfOJIlVDJO^         '^i'ilJDNVSOl^ 


v^ 


.^,OFCALIF0% 


^OFCAllFOff^ 


^<?Aiivaan#      ^^AbvaaiH^ 


aWEUNIVERS/a 


% 


rS^ 


^WEUNIVERS/a 


<ril30NVS01^ 


vvlOSANCElfj). 

O 


-< 


^lllBRARYQ^ 


^<!/0Jl"IV3JO^ 


V 


W^EUNtVERy/^       ^lOSANCElfj>  ^OFCAll  F0% 


o 


>- 


>-      =3 


^J'ilJONVSOl^       '^/^a3AINn]WV^ 


^<!/0JnV3JO^ 


^WE•UNIVERV/, 


o 


o 


%a3AiNn]WV 


^OFCAIIFO/?^ 


^<?Aavaani^ 


^OF- 


^ 


^tllBRARYQr         ^^IIIBRARY(9^ 


^.!/0JllV3JO'^      ^d/OJIlVDJO"^ 
.>^OFCALIFO%        .^OFCAIIFO% 


^c'Aavaaii-i^    "^^^Abvaan-i^ 


AWEUNIVERS-Z/i 


o 


AWEUNIVERi-//, 


^VlOSANCElfj-^ 
o 


<r7133NVS01^       '^•^mhww^ 


\WEUNIVER5'//) 


O 
— n 

rS 


^lOSANCElfj-^ 
o 


"///ruiiuin  mV~ 


J/}o.iuwuon.i\)v^ 


SLAVERY  IN  GERMANIC  SOCIETY 
DURING  THE  MIDDLE  AGES 


THE  UNIVERSITY  OF  CHICAQO  PRESS 
CHICAGO,  ILLINOIS 

Bgents 

THE  BAK2R  i  TAYLOK  COMPANY 

N3W  TOBK 

THE  CUNNINGHAM,  CUBTISS  &  WELCH  COMPANY 

LOS  ANeELBS 


THE  CAMBRIDGE  UNIVERSITY  PRESS 

LONlK>N  AND  EDINBUHOH 

THE  MARUZEN-KABUSHIKI-KAISHA 

TOKYO,  OSAKA,   KYOtO 

THE  MISSION  BOOK  COMPANY 

SHAIfOHAI 

KARL  W.  HIEBSEMANN 

LEIPZia 


SLAVERY  IN  GERMANIC 

SOCIETY  DURING  THE 

MIDDLE  AGES 


By 

Agnes  Mathilde  Wergeland,  Ph.D. 

(Ziirich) 

Late  Professor  of  History,  University  of  fVyoming 


THE  UNIVERSITY  OF  CHICAGO  PRESS 
CHICAGO,   ILLINOIS 


Copyright  1916  By 
The  University  of  Chicago 

All  Rights  Reserved 

Published  September  igifi 


Composed  and  Printed  By 

The  University  of  Chicago  Press 

Chicago,  lUiDois,  U.S.A. 


v^ 


CONTENTS 

PAGE 

Preface vii 

Author's  Preface xi 

Authorities  Consulted xv 

CHAPTER 

I.  Introduction i 

II.  Reduction;  Utility;  The  Down- 
ward Course,  the  Slave  Becoming 
More  and  More  a  Thing     ....        6 

III.  Restitution;     The  Upward  Course; 
Amelioration  of  Slavery     ....      47 

IV.  Liberation        103 


c 
c 


*:)^/gQf^,R 


PREFACE 

That  loyal  affection  to  Dr.  Wergeland's 
memory  should  suggest  the  thought  of 
reprinting  her  monograph  on  Slavery  in 
Germanic  Society  during  the  Middle  Ages 
will  seem  wholly  natural,  as  certainly  it  will 
be  deeply  gratifying,  to  all  those  who  really 
knew  her.  While  she  was  much  else  than 
merely  a  scholar — a  woman  of  noble  char- 
acter, a  valiant  soul,  generous,  straightfor- 
ward, friendly,  an  inspiring  teacher,  and  a 
literary  writer  of  varied  accomplishments 
in  more  than  one  language — it  was  impossible 
not  to  wish  that  something  of  what  she  did 
in  the  field  of  scholarship,  the  field  into  which 
she  threw  the  main  endeavors  of  her  forcible 
and  energetic  mind,  might  be  preserved 
in  a  permanent  form.  The  circumstances 
of  her  life,  especially  the  devoted  work  of  the 
teacher,  did  not  permit  the  completion  of  any 
large  book.  From  among  her  lesser  writings 
a  wise  choice  has  been  made  of  her  papers  on 


viii  PREFACE 

mediaeval  slavery,  originally  printed  in  the 
Journal  of  Political  Economy. 

The  theme  is  one  of  much  importance, 
and  especially  for  American  readers.  Slavery 
has  a  large  place  in  the  history  of  the  United 
States,  yet  the  story  of  its  development, 
institutional  characteristics,  and  abolition 
has  been  pursued  almost  entirely  as  if  slavery 
had  never  existed  in  other  lands  and  other 
times.  The  history  of  American  slavery, 
in  other  words,  has  not  had  that  additional 
light  cast  upon  it  which  would  come  from 
comparative  study,  though  it  is  well  known 
how  potent  an  illuminator  the  comparative 
method  has  proved  itself  to  be  in  many 
other  fields  of  economic  and  social  history. 
In  reality,  we  cannot  hope  to  attain  a  true 
understanding  of  American  slavery  in  some 
of  its  most  essential  aspects  unless  we  are 
somehow  made  mindful  of  the  history  of 
slavery  as  a  whole. 

The  history  of  slavery  in  the  Middle 
Ages  has  received  much  less  attention  than 
that  of  serfdom,  and  perhaps  less  with  respect 
to  the  Germanic  portions  of  Europe  than  the 


PREFACE  IX 

southern  lands.  Dr.  Wergeland's  contri- 
bution to  it  is  marked  by  great  learning. 
That  is  a  matter  of  course.  Especially  valu- 
able is  the  information  she  brings  from  her 
extensive  reading  in  the  legal  writings  of 
mediaeval  Scandinavia.  But  the  reader  will 
also  see  the  evidences  of  logical,  and  even 
of  philosophical  thinking,  and  of  a  large, 
general  grasp  of  the  institutional  history  of 
Northern  Europe  as  a  whole.  He  will  see  a 
close  appreciation  of  the  working  of  eco- 
nomic motives.  He  will  see  the  marks  of  a 
cultivated  mind,  and  will  probably  be  struck 
with  the  excellence  of  the  English,  in  the  case 
of  one  to  whom  English  was  not  the  native 
tongue.  If  in  some  small  instances  he 
detects  a  slight  foreign  flavor,  it  is  compen- 
sated by  a  certain  originality  and  piquancy 
of  phrase,  in  other  places,  that  were  char- 
acteristic of  the  author. 

It  will  be  the  hope  of  all  Dr.  Wergeland's 
friends  that  the  publication  of  her  essay  in  its 
present  form  shall  aid  to  perpetuate  her 
memory  in  a  way  she  would  have  especially 
liked,  for  certainly  she  shared  the  "inward 


X  PREFACE 

prompting"  that  Milton  has  described, 
"that  by  labor  and  intent  study  (which  I 
take  to  be  my  portion  in  this  life),  joined 
with  the  strong  propensity  of  nature,  I 
might  perhaps  leave  something  so  written 
to  after  times  as  they  should  not  willingly 
let  it  die." 

J.  Franklin  Jameson 

Carnegie  Institution  of  Washington 
March  22,  1916 


AUTHOR'S  PREFACE 

"Eis  qui  calami tatem  pati  potuere  et  fortuna 
adversa  luctantes  denique  superavere." 

In  Ingram's  History  of  Slavery  many  may 
have  missed  an  adequate  treatment  of  this 
social  status  during  the  Middle  Ages.  Eng- 
lish historians  generally  seem  to  consider 
slavery  in  the  mediaeval  period  as  an  imper- 
fect type,  more  akin  to  serfdom.  They 
therefore  conclude  their  investigations  with 
the  downfall  of  the  Roman  Empire.  After 
that,  in  their  opinion,  slavery  seems  to  have 
lost  character.  Nevertheless  the  Germans 
brought  slaves  with  them  when  they  first 
appeared  upon  the  scene.  Slavery  existed 
with  them,  as  it  always  exists  where  war  is 
the  predominant  occupation  and  booty  the 
chief  income,  and  it  accordingly  was  of  no 
uncertain  type.  Moreover,  the  entrance  of 
the  Germans  into  relations  with  the  socially 
and  economically  highly  developed  Roman 
world,  where  slavery  was  looked  upon  as 


xii  AUTHOR'S  PREFACE 

one  of  the  chief  pillars  of  economic  existence, 
the  upheaval  and  wholesale  reduction  of 
classes  succeeding  the  conquest,  and  finally 
the  burden  of  maintaining  an  extensive  new 
empire  at  whatever  cost,  could  not  lead  to 
aboHtion  of  slavery.  Sometimes,  indeed, 
these  things  helped  the  slave  to  become 
master;  but,  on  the  whole,  they  prolonged 
the  existence  of  slavery  as  an  institution. 
That  slavery  comparatively  early  passed  into 
serfdom  cannot  change  the  fact  that  for 
centuries  it  existed  as  a  recognized  and 
feared  state  of  extreme  servitude,  of  which 
the  harsh  features  were  often  German  and 
Roman  combined.  For  it  is  not  true  that  as 
a  race  the  Germans  were  averse  to  servitude. 
On  the  contrary,  the  free  and  omnipotent 
warrior  needs  the  slave  as  his  social  contrast; 
and  it  was  the  North,  untouched  by  Roman 
influences,  that  showed  the  slave  most 
absolutely  subjected;  not  the  South,  where 
he  more  easily  became  a  serf.  The  readier 
change  was  no  doubt  due  to  the  greater 
number  of  slaves  in  the  South,  and  number, 
as  Sohm  says,  is  power.    The  only  difference 


AUTHOR'S  PREFACE  xiii 

between  slavery  with  the  Romans  and  with 
the  Germans  is  that  among  the  Romans  we 
can  far  more  properly  speak  of  slavery  as  a 
state  that  comprised  numberless  individuals 
who  do  not  further  occupy  us;  whereas 
among  the  Germans  it  is  more  to  the  point 
to  speak  of  the  slave  as  an  individual  whose 
state  can  be  judged  of  from  his  particular 
case.  But  this  difference  is  really  due  to  the 
imperfect  economic  opportunities  of  the 
Germans,  rather  than  to  original  intention. 
For  when  conditions  changed,  as  they  later 
did,  and  serfdom  came  to  take  the  place  of 
slavery,  which  in  theory  happened  very 
early,  the  serf  of  Germany  and  France,  and  I 
venture  to  say  of  England  as  well,  was  hardly 
better  off  than  the  Roman  colonus.  His 
state  was  practically  economic  slavery,  and 
it  was  perhaps  even  harder  than  it  seems, 
since  it  had  the  semblance  of  personal 
liberty. 

To  attempt  to  verify  some  of  the  state- 
ments just  made,  and  to  give  a  more  exact 
conception  of  the  meaning  and  bearing  of 
slavery  among  the  Germanic  races,  is  the 


xiv  AUTHOR'S  PREFACE 

object  of  this  monograph.  Owing  to  cir- 
cumstances, however,  it  cannot  be  more  than 
a  generalization.  I  have  wished,  neverthe- 
less, to  make  use  of  the  sources,  as  far  as  they 
have  been  at  my  disposal,  and  also  of  the 
extensive  studies  of  social  conditions  in  the 
Middle  Ages  which  characterize  the  later 
German  historical  school,  and  which  are  not 
generally  known  to  American  readers.  The 
vast  material  has  been  reduced  to  as  simple 
and  manageable  a  compass  as  the  subject 
would  permit,  and  I  have  limited  the  refer- 
ences as  much  as  possible  in  order  not  to 
overburden  the  text.  References  to  law 
could  not  always  be  quoted  in  full,  especially 
in  the  case  of  laws  so  little  known  as  the 
Scandinavian  and  Icelandic.  Authors,  such 
as  Wilda,  Amira,  and  Grimm,  who  give 
translations  of  these  laws,  would  usually  be 
of  greater  service,  and  they  again  give 
further  references. 


AUTHORITIES  CONSULTED 

Monumenta  Germ.,  4to  ed. 

Corpus  jur.  germanici,  ed.  Walter,  Vol.  I. 

Norges  gamle  Love,  Vols.  I-V  (Vol.  I,  Gulajjingslog, 

abbrev.  G)?l.;  and  Frostajjingslog,  abbrev.  'F\i\.) 
Grdgds. 
Die  Gesetze  der  Angelsachsen,  ed.  Liebermann,  Vol.  I, 

I  and  2. 
Die  Gesetze  der  Angelsachsen,  ed.  Schmid. 
Corpus  juris  civilis,  Vol.  I. 
Lex  Salica,  ed.  Geffcken. 
Lex  Salica,  ed.  Bahrend. 
Heimskringla,  ed.  linger,  Vol.  I. 
Morris,  The  Saga  Library,  Vols.  I-III. 
Sagabibliothek,  Vols.  Ill,  IV,  VI. 
Thevenin,  Institutions  privees. 
Guerard,  Polyptique  de  Vabbe  Irminon,  Vol.  I. 
Geschichtschreiber    der   deutschen    Vorzeii,    2d    ed,, 

Vol.  IV. 
Grimm,  Rechtsalterthilmer,  Vols.  I,  II,  4th  ed. 
Wilda,  Das  Strafrecht  der  Germanen. 
Heusler,    Institutionen    des   deutschen    Privatrechts, 

Vol.  I. 
Amira,  N ordgermanisches  Obligationenrecht,  Vols.  I, 

II. 


xvi  AUTHORITIES  CONSULTED 

Maurer,  Schuldknechtschajt  (in  Sitzungsherichte  der 

Munchener  Acad.). 
Jastrow,  Zur  strafrechtlichen  Stellung  des  Sclaven 

(Gierke,  Untersuchungen,  Heft  II). 
Coulanges,  Institutions  politiques.    L' Invasion  ger- 

manique. 
Mommsen,  Romisches  Strafrecht. 
Schroeder,  Rechtsgeschichte. 
Sagabibliothek  (Altnordische),  Hefte  3,  4,  6. 
The  Story  of  Burnt  Njdl,  tr.  by  Dasent. 
Thierry,  Recits  de  VHistoire  de  France,  Vol.  I. 
Hefele,  Conciliengeschichte. 

Loning,  Geschichte  des  deutschen  Kirchenrechts,  Vol.  II. 
Mansi,  Amplissima  collectio  conciliorum,  Vol.  XI. 
Maurer,  Die  Freigelassenen  nach  norwegischen  Rechte 

Sitzungsherichte,  1878. 
Maurer,  Die  Bekehrung  des  norwegischen  Stammes, 

Vol.  II. 
Stutz,  Geschichte  des  Beneficialwesens,  Vol.  I. 
Pappenheim,  Launegild  und  Garethinx,  in  Gierke's 

Untersuchungen,  Heft  14. 
Sohm,  Reichs-  und  Gerichtsverfassung,  Vol.  I. 


CHAPTER  I 
INTRODUCTION 

We  draw  our  information  concerning 
slavery  mainly  from  two  sources:  from  his- 
tory and  from  the  laws  of  the  nations  with 
which  we  are  dealing.  History  gives  a  few 
leading  hints  of  the  origin  and  development 
of  slavery,  but  that  it  never  proceeds  to  dis- 
cuss or  explain  the  nature  of  slavery  is  because 
it  is  naturally  less  concerned  with  definitions 
than  with  events.  For  more  exhaustive 
knowledge  we  turn  to  the  laws.  These,  if 
not  always  explicit,  attempt  to  lay  down  rules 
for  conduct  from  which  it  is  possible  to 
draw  definite  conclusions  concerning  almost 
every  relation  of  life.  Slavery,  besides  being 
a  feature  of  society,  is  above  all  a  juridical 
relation,  and  belongs  almost  exclusively  under 
the  head  of  civil  law.  If,  however,  the  slave 
figures  conspicuously  in  the  paragraphs  of 
the  criminal  code,  this  is  due  to  his  peculiar 
double  relation  as  thing  and  as  man. 


2  SLAVERY  IN  GERMANIC  SOCIETY 

I  shall  begin  with  a  review  of  the  prin- 
ciples leading  to  the  development  of  slavery 
and  constituting  its  main  features.  The 
study  of  institutions,  as  institutions,  may  in 
other  cases  afford  much  satisfaction,  but  in 
regard  to  slavery  it  offers  only  meager 
results,  because  the  situation  of  the  slave  is, 
and  must  be,  in  the  main,  the  same  every- 
where. This  is  plain  from  the  start,  self- 
evident.  The  variations  according  to  nations 
and  customs  are  but  insignificant,  and  the 
general  outcome  one  type.  Only  when  slav- 
ery approaches  its  termination,  when  inner 
and  outer  influences  combine  to  break  the 
awful  monotony  and  create  true  change, 
does  it  call  for  specialization  in  treatment. 
The  psychological  problem  of  whether  and 
how  a  human  being  can  live  in  such  narrow, 
unindividual  bounds  interests  us  less  than 
when  and  how  he  got  beyond  them  into 
freer,  more  natural  conditions  of  life.  After 
all,  we  know  that  a  slave-relation  is  im- 
possible; sooner  or  later  the  human  being 
or  a  succession  of  generations  must  press  out 
of  it.     Therefore,  in  treating  of  the  slave 


INTRODUCTION  3 

proper,  the  scientific  method  usually  em- 
ployed is  better  replaced  by  the  philosophical ; 
since  the  points  of  interest  to  the  student  of 
civilization  are  far  more  the  reasons  and 
main  features  of  slavery  than  the  national  or 
tribal  differences,  which  indeed  have  little 
bearing  on  the  whole. 

Slavery,  as  a  feature  of  human  life,  may  in 
general  be  studied  from  two  main  points 
of  view:  that  of  reduction,  the  original 
and  crude  form ;  and  that  of  restitution,  the 
later  and  improved  state,  which  must  end  in 
liberty.  Reduction  (or  utility  may  serve  as 
well)  presents  itself  at  once  as  the  governing 
idea  in  slavery.  The  slave  exists  for  use; 
in  the  earliest  time  perhaps  to  be  devoured  as 
game;  later  to  be  sacrificed  to  gods  and 
heroes : 

Saga  Olafs  Trygvasonar  {Heimskringla),  c.  74: 
"En  ef  ek  skaltil  biota  hverfa  meS  y6r,"  etc.  "But 
look  ye,  if  I  turn  me  to  offering  with  you,  then  will 
I  make  the  greatest  blood-offering  that  is,  and  will 
offer  up  men,  yea,  and  neither  will  I  choose  hereto 
thralls  and  evil-doers;  but  rather  will  I  choose  gifts 
for  the  gods  the  noblest  of  men."  (tr.  by  William 
Morris). 


4  SLAVERY  IN  GERMANIC  SOCIETY 

And  finally  the  slave  exists  to  work.  He  is 
nothing  more  than  the  beast  of  burden  whose 
fate  he  generally  shares,  except  that  he  pos- 
sesses faculties  which  make  him  more  valuable 
property,  though  more  dangerous,  than  the 
dumb  brute  or  the  dead  tool.  And  here,  in  his 
double  character  as  object  and  as  person,  lies 
the  problem  which  the  social  ideas  governing 
his  reduction  or  his  restitution  have  to  solve. 
His  double  existence  as  thing  and  as  man  pre- 
supposes different  relations  (as  thing,  a  rela- 
tion to  an  owner;  as  man,  a  relation  to  a 
fellow  human  being),  and  must  lead  to  dif- 
ferent solutions.  The  emphasis  given  to  the 
one  or  to  the  other  side  of  his  existence 
creates  an  egoistic  or  an  altruistic  attitude. 
If  self-interest  governs  the  relation,  an 
obstinate  maintenance  of  slavery  is  the 
result.  If  the  humane  attitude  dominates, 
the  slave  must  gradually  be  put  on  an  equal 
footing  with  his  master.  The  final  solution 
of  the  problem  is  indeed  foreshadowed  in  the 
want  of  harmony  inherent  in  slavery  between 


INTRODUCTION  5 

ethics  and  business,  so  that  however  often 
slavery  reappears  as  an  outcome  of  political 
or  economic  needs,  it  after  all  bears  the 
stamp  of  transition  and  in  the  end  must 
reach  freedom.  This,  I  trust,  will  all  become 
clearer  as  the  essay  proceeds. 


CHAPTER  II 

REDUCTION;   UTILITY;   THE  DOWNWARD 

COURSE,    THE    SLAVE    BECOMING 

MORE  AND  MORE  A  THING 

A.      FLUCTUATING   STATE 

From  the  standpoint  of  utility  and  self- 
interest,  the  conditions  by  which  slavery 
is  brought  about  may  be  either  artificial, 
i.e.,  not  having  existed  previously,  but  created 
by  some  forcible  act  to  serve  a  certain  purpose, 
or  natural,  i.e.,  growing  out  of  precedents 
already  established,  of  which  slavery  as  an 
institution  is  a  last  consequence.  In  the 
case  of  the  artificial  conditions  a  man  had 
been  free,  an  equal  of  his  fellows;  but  by  a 
sudden  turn  of  fortune,  and  for  reasons 
further  to  be  explained,  he  is  reduced  to 
servitude.  A  new  class  of  people  is  thus 
started,  yet  not  established  unalterably  and 
forever.  In  the  case  of  the  natural  con- 
ditions, however,  the  fluctuating  relation 
becomes  by  long  usage  permanent ;  it  is  con- 

6 


REDUCTION  7 

tinued,  and  its  continuation  introduces  into 
society,  not  a  new  class  merely,  but  in  the 
course  of  time  literally  a  new  race.  In  this 
race  the  inferior  qualities  predominate,  being 
no  longer  hypothetical,  but  real,  fixed,  and 
typical;  and  the  subordinate  relation  is  not 
de  jure  but  de  facto.  Let  us  remember  the 
passages  in  the  magnificent  old  Norse  poem, 
Rigspula,  relating  to  the  origin  of  classes: 
"Lowest  stands  the  black-haired,  deformed 
slave  (black-haired  because  of  foreign  origin) 
with  heavy  awkward  step  and  boorish 
manners — a  slow  worker;  then  the  well- 
to-do  peasant,  who  prides  himself  on  his 
appearance;  then  the  noble,  grown  up  in  the 
pleasurable  exercise  of  his  body,  with  the 
yellow  hair,  the  fair  skin,"  etc.  The  Chris- 
tian democratic  view  may  scorn  distinc- 
tions like  this  and  consider  them  devoid  of 
meaning;  the  pagan  aristocratic  view  could 
and  would  not  disavow  them,  and  it  is  with 
this  side  of  Germanic  life  that  we  have 
to  do. 

Man  may  be  enslaved  through  conquest, 
purchase,  or  crime. 


8  SLAVERY  IN  GERMANIC  SOCIETY 

I.  History  furnishes  the  first  evidence 
of  the  establishment  of  transitory  slavery 
by  means  of  war  and  brute  force.  War  is 
probably  the  oldest  and  most  natural  mode 
of  recruiting  a  slave  class  before  there  exists 
a  permanent,  self -perpetuating  slave  class/ 
This  mode  is  less  an  article  of  actual  law 
than  a  paragraph  of  international  and  uni- 
versal custom,  which  by  simple  logic  of 
force  decrees  that  whoever  succumbs  in 
might  succumbs  also  in  right;  the  loss  of 
power  is  the  loss  of  self.  Whoever  cedes 
his  arms  cedes  all — life,  liberty,  even  iden- 
tity.^ History  affords  plenty  of  instances 
of  the  making  of  slaves  as  a  chief  booty 
of  war.  Even  after  Christianity  had  begun 
its  ameliorating  work,  we  find  in  Gregory  of 
Tours  a  passage  like  this :  Theodoric  says  to 
his  people:  "Follow  me,  and  I  will  lead  you 
into  a  land  where  you  will  find  gold  and 
silver  as  much  as  you  desire.  There  you 
can  have  herds  and  slaves  and  clothes  in 

'  Grimm,  R.A.,  p.  320. 

'Ibid.:  "Na  rechter  Wahrheit,"  etc.;  p.  322:  "Aus  den 
besiegten,"  etc.;    p.  323:    '*....  es  fragt  sich,"  etc. 


REDUCTION  9 

abundance."^  In  the  wars  between  the 
sons  of  Chlodevech  each  brother  made  slaves 
of  the  prisoners  taken  from  the  other.  Slave 
trade  was  common  over  the  whole  continent 
till  after  the  tenth  century,^  and  the  greater 
number  of  these  slaves  must  have  been  ac- 
quired by  war,  if  not  by  positive  conquest. ^ 
Thousands  of  instances  in  all  history  illus- 
trate this  custom.  It  is  to  such  an  extent 
a  matter  of  custom  that  no  further  word  con- 
cerning it  appears  necessary. 

2.  History  also  iijforms  us  of  the  estab- 
lishment of  a  slave  class  by  the  second 
means  of  enslavement,  namely,  purchase 
(barter,  trade).  For  this  the  stage  of  being 
already  a  prisoner  and  thus  bereft  of  liberty 
may  be  considered  a  necessary  prerequisite. 
Trade   with   slaves    was   a   most    ordinary 

'  Gregory  of  Tours,  iii.  ii. 

'  In  the  Scandinavian  countries  and  in  England  slavery 
was  abolished  in  the  twelfth  century.  But  the  laws  of  the 
thirteenth  century  (later  G}>1.,  Norway)  and  of  the  four- 
teenth century  (Sweden  and  Denmark)  still  speak  of  the 
"slave." 

3  Grimm,  R.A.,  p.  323:  "Gegen  slaven  und  heiden,"  etc.; 
but  p.  342:  "Liest  man  die  traditionen,"  etc. 


lo        SLAVERY  IN  GERMANIC  SOCIETY 

feature  of  border  life.^  The  German  father 
had  power  to  sell  his  child  and  his  whole 
household  into  captivity.^ 

Edict.  Pistense  (864),  c.  34:  "In  lege  etiam  quam 
praedecessores  nostri  at  nominatissimi  imperatores 
constituerunt  de  his,  qui  filios  suos  fame  aut  alia 
aliqua  necessitate  cogente  vendunt,  plura  habentur 
capitula,  quae  omnia  hie  non  necesse  duximus 
ponere." — M.  G.  Legum,  sectio  ii.  2  (cf.  Cod. 
Theod.,  iii.  3,  i;  and  Cod.  Just.,  iv.  43,  i,  2). 

A  case  of  barter  pure  and  simple  is  the 
story  of  how  a  king's  son  is  exchanged  for  a 
ram,  and  then  for  a  coat,  and  finally  is 
bought  for  nine  marks  of  gold.^  The  church 
throughout  its  course  did  all  it  could  to  stop 
the  trade  by  buying  the  prisoners  and  setting 
them  free  (see  Life  of  St.  Severin,  c.  4,  8,  10, 

'  Laxdaela  Saga  (Iceland),  xii.  6-22;  Grimm,  R.A.,  p.  321; 
Pollock  and  Maitland,  Hist,  of  Engl.  Law,  Vol.  I,  p.  11: 
"Slavery,  personal  slavery,"  etc. 

*  Jordanes,  Getica,  c.  26,  135  {Mon.  Germ.  Audores,  fol.  ed., 
Vol.  V,  p.  i);  Grimm,  R.A.,  p.  329,  "So  gaben  die  Friesen," 
etc. 

^  SagaOlafsTrygvasonar,c.  s,6:  ".  .  .  .  en  hafSi  sveinana 
meS  ser  ok  seldi  Jjeim  manni  er  Klerkr  het  ok  tok  fyrir  hafr 
einn  vel  goSan.  Hinn  })riSi  maSr  keypti  Olaf  ok  gaf  fyrir 
vesl  gott  eSa  slagning,"  etc. — Grimm,  R.A.,  p.  321. 


REDUCTION  1 1 

19,  and  passages  in  Gregory  of  Tours,  vi.  8), 
but  it  was  not  effectually  restrained.' 

3.  On  turning  to  consider  enslavement  as 
a  result  of  crime,  we  leave  history  and  enter 
on  law  proper.  Law  reveals  another  phase 
of  slavery  of  equally  fluctuating  character: 
the  establishment  of  a  slave  class  by  means  of 
punishment  (crime,  debt).  Here  we  leave 
the  field  of  chance,  as  is  war,  and  enter  regu- 
lated, orderly  social  life.  There  is  no  longer 
indiscriminate  warfare  with  the  accompany- 
ing defeat  and  spoil,  but  peaceful  intercourse. 
The  fundamental  principle  of  such  peace 
and  order  is  the  sense  of  obligation.  Obliga- 
tion, however,  cannot  be  created  without  the 
infliction  of  punishment  for  neglect  or  viola- 
tion. Germanic  laws  abound  in  rules  about 
crime  and  debt.  In  the  eyes  of  the  German 
warrior  the  duties  of  the  state  are  of  the 
simplest  kind.  Government  exists  to  pro- 
tect life,  secure  property,  and  maintain  the 

'  Pollock  and  Maitland,  Vol.  I,  p.  12:  "Selling  Christian 
men  beyond  the  sea  ....  forbidden  by  Aethelred"  (Vol.  V, 
p.  2;  Vol.  VI,  p.  9);  repeated  in  Cnut's  Laws  (Vol.  II,  p.  3), 
cf.  Lex  Rib.,  16;  Lex  Sal.,  39,  sec.  2:  "Si  quis  hominem,"  etc., 
....  under  penalty  of  200  sol. 


12        SLAVERY  IN  GERMANIC  SOCIETY 

border;  this  is  all  that  can  be  demanded. 
Accordingly  the  state  is  found  only  in  its 
crudest  form,  not  the  complicated  perfected 
machine  that  the  Romans  knew.  In  all  the 
Germanic  laws  the  breach  of  peace  can  be 
atoned  for  by  certain  fines;  the  harsher  meas- 
ures, such  as  mutilation,  exile,  death,  being 
reserved  (for  fear  of  starting  the  old  feud 
and  anarchy)  only  for  the  grossest  offenses. 
Violation  of  property  and  breach  of  obliga- 
tion to  pay  (fine)  are  more  generally  punished 
by  loss  of  liberty  for  a  shorter  or  longer  time. 

The  free  individual  can  thus  be  reduced 
to  slavery  for  murder  (secret),  illegal  rela- 
tions, theft,  or  debt.^ 

Murder  (with  concealment  of  corpse),  and 
theft  as  well,  seem  to  the  German  particularly 

'  Concerning  the  possibility  of  a  freeman  being  reduced 
to  slavery  for  murder  (with  concealment  of  corpse)  see  GJ>1., 
c.  156:  ".  .  .  .  fellr  til  utlegSar"  (exiled),  and  c.  178:  }>at 
er  niSingsvig  .  .  .  .  })d  fara  han  utlegr  oc  uheUagr."  (Exile 
might  under  some  circumstances  lead  to  slavery.  See  sec.  3.) 
Pollock  and  Maitland,  Vol.  I,  p.  33:  "Slavery  was  a  recog- 
nized penalty,"  etc.;  Grimm,  i?.^.,  p.  328:  " Konnte  einer," 
etc.;  Amira,  Nordgerm.  Obligat.  Recht.,  Vol.  I,  pp.  126,  131, 
n.  3,  and  p.  480:  "Der  schuldknecht  habe  sich  durch  diebstahl 
'verwirkt.'"  See.!  tie's  Laws,  c.  7,  p.  i;  Eadweard's  Laws,  c.  6; 
Lex  Burgund.,  tit.  xlvii.  sees,  i,  2. 


REDUCTION  13 

hateful  because  of  their  stealthy  underhand 
nature,  unworthy  of  a  freeman.^  The  free 
man  who  violates  the  dignity  of  a  free  woman, 
and  the  free  person,  either  man  or  woman, 
who  forgets  his  position  so  far  as  to  associate 
with  slaves  (marriage)  becomes  a  slave,  i.e., 
his  behavior  excludes  him  from  the  free.^ 
The  outlawed  freeman  may  desire  to  ex- 
change exile  for  slavery.^ 

GJjL,  c.  260:  "Nu  verSr  maSr  of  ]7yfsku  utlagr." 
" .  .  ,  .  oudawed  for  theft,  the  one  from  whom  the 
goods  is  stolen  shall  pay  himself  from  the  thief's 
property  and  three  times  the  value  of  what  was 
stolen";  also  cc.  256,  257,  258,  259. 

'  Wilda,  Strafrecht  der  Germanen,  p.  153;  "Treubruch 
oder  heimlichkeit,"  etc.,  pp.  706-14.  As  a  matter  of  course, 
the  murderer  is  an  outlaw.  If  he  caimot  produce  the  payment 
to  the  family  of  the  murdered,  he  may  be  kept  by  them  as  a 
slave.     See  Schroeder,  Rechtsgesch.,  pp.  72,  73. 

^  Lex  Sal.,  c.  25,  5,  6;  c.  ii.  12,  70;  Wilda,  p.  826;  Grimm, 
R.A.,  p.  326:  "Unfreie  hand  zieht  die  freie  nach  sich,"  etc.; 
Thevenin,  Institutions,  Charte  151;  fable  in  Gregory  of  Tours, 
iii.  31. 

3  Wilda,  p.  515:  "Mag  es  wohl  vorgekommen  sein 

Es  erstand  durch  letzteres  aber  keine  wahre  eigenschaft." 
See  n.  i.  Cf.  Schroeder,  p.  46,  n.  i.  For  prohibition  of  a 
free  Frank  accepting  slavery  (instead  of  death?)  as  punish- 
ment for  theft,  see  Capit.,  No.  77  Boretius,  a.  801-13, 
CIS- 


14        SLAVERY  IN  GERMANIC  SOCIETY 

In  regard  to  slavery  for  theft,  or  for 
debt/  the  law  looks  on  the  thief  who  cannot 
restore  the  stolen  property  much  as  on  the 
insolvent  debtor;  and  on  the  debtor  who 
cannot  pay  as  on  the  thief  of  another's 
property.  Slavery  for  debt  seems  to  have 
been  the  more  common  of  the  two.  A  debt  is 
any  unpaid  obligation,  not  only  fines  for  crime 
and  compositions,  but  also  private  dues, 
such  as  rent  of  land,  personal  debt.  Debt  is 
in  itself  delict;  the  debtor  has  of  course  been 
properly  warned,  the  process  has  started 
and  been  concluded  without  satisfactory 
result,  before  execution  can  begin.  For 
debt  in  the  sense  of  fine  not  properly  paid 
a  freeman  can  be  exiled;  and  slavery  begins 
when  the  creditor  cannot  obtain  any  satis- 
faction for  his  claim  in  the  debtor's  property 
and  no  third  person  comes  to  the  rescue.^ 
Slavery  is  thus  established  for  a  child  whose 
father  gives  it  as  security  for  a  debt.^    Slav- 

'  Passage  in  Tacitus,  c.  24:  ".  .  .  .  victus  voluntariam 
servitutem  adit." 

*  Amira,  Vol.  I,  p.  128:  ".  .  .  .  mit  dem  man  auch  dessen 
frau  und  kinder  verknechtet"   (Gotland). 

3  Maurer,  Die  Schuldknechtschaft,  p.  4. 


REDUCTION  IS 

ery  of  this  kind  is  either  permanent  or  tempo- 
rary, i.e.,  the  debtor  works  off  his  debt  in 
the  continuous  service  of  his  creditor  till  the 
amount  is  paid,  but  not  longer. 

Cf.  Eadweard's  Laws,  c.  6:  ".  .  .  .  the  debtor 
(as  slave)  shall  owe  as  much  work  to  the  creditor 
as  is  needed  to  pay  the  debt"  and  not  more;  Leg. 
Lang.,  Luitprand,  c.  152:  *'....  ut  serviat  tantos 
annos,  ut  ipsa  culpa,"  etc.;  Aregis,  c.  6:  ".  .  .  . 
usque  ad  praefinitum  tempus";  Thevenin,  Charte  38: 
".  .  .  .  in  ea  ratione  ut  interim  quod  ipsos  solidos 
vestros  reddere  protuero  et  servitium  vestrum  et 
opera  ....  facere  et  adimplere  debeam."' 

Grdgas,  II.  c.  227  (cod.  reg.  Finsen):  ".  .  .  .  sva 
sem  Israel  vaeri  faj^ir  hans  en  ambatt  mojjer  hans." 

This  seems  evident  from  the  improvement 
in  the  contract  and  the  resignation  by  the 
creditor  of  a  part  of  his  rights  which  char- 
acterize the  milder  form,  and  which  an 
earlier  age  could  not  have  permitted.  Here 
it  is  the  church  which  in  its  attempt  to  live 
up  to  the  ideal  of  brotherly  love,  to  the 
Mosaic  prohibition  of  usury  of  man  (Lev. 

'  See  also  Capil.  Lex  Rib.  addit.,  a.  803,  c.  3  LL.  ii  (ed.  Bor.) ; 
Capit.  Caroli  ap.  Anseg.  serv.,  a.  810,  811,  c.  3. 

Of  the  two  forms,  permanent  and  temporary,  the  first  is 
the  older. 


1 6        SLAVERY  IN  GERMANIC  SOCIETY 

25-39)7  succeeded  in  changing  the  previous 
atrocious  custom/  The  same  desire  to 
break  the  rigor  of  law  caused  the  church  to 
prefer  seeing  the  prisoner  of  war,  the  un- 
redeemed hostage,  the  exiled  culprit,  enslaved 
rather  than  killed.  The  debtor  on  becom- 
ing a  slave  was  actually  reduced  to  a  slave's 
state;  his  hair  was  cut  ( ?) ;  a  strap  or  collar 
was  passed  around  his  neck;  he  placed  his 
head  under  his  master's  arm,  etc.^ 

Thevenin,  Charte  no:  "Corrigeam  ad  collum 
meum misi " ;  Charte 38:  ".  ,  .  .  sic mihi aptificavit 
ut  bracchium  in  collum  posui";  Charte  161: 
"Quattuor  itaque  denarios  ex  more  sibi  supra 
caput  posuit";  likewise  Charte  171. 

So  much  for  what  must  be  looked  upon  as 
characteristic  of  permanent  slavery  only. 
Still  it  would  be  very  erroneous  indeed  to 
think  of  the  milder  form  as  merely  make- 
believe.3  That,  too,  is  after  all  a  mortgage  of 
the  person  of  the  debtor  to  the  creditor  which 

'  Aelfred's  Laws,  Introd.,  p.  11. 

=  Grimm,  R.A.,  p.  328:  "Zum  zeichen  der  knechtschaft," 
pp.  702,  714;  Guerard,  Polyptique  d'Irminoii,  Vol.  I,  p.  287; 
Wilda,  p.  523:   "Das  sclavische  abscheeren  tier  haare,"  etc. 

3  Amira,  Vol.  II,  p.  162. 


REDUCTION  17 

possesses  all  the  rigor  of  the  old  Roman 
nexum.  For  the  debtor  may  be  reduced  to 
slavery  permanently  if  he  cannot  pay  or  if 
he  leaves  the  creditor  without  the  latter's 
permission.  Not  only  this,  but  if  the  debtor 
is  unable  to  pay  and  nobody  offers  to  assist 
him,  or  if  he  proves  obstinate  and  refuses 
to  work,  the  creditor  may  sell  him  for  the 
amount  of  the  debt.  He  may  also  cut  off 
from  the  debtor's  body  what  corresponds  to 
the  amount  due,  i.e.,  the  creditor  may  muti- 
late his  recalcitrant  slave,  presumably  as  an 
act  of  vengeance  for  the  lost  security,  or  he 
may  even  kill  him  as  if  he  were  a  thief  caught 
in  the  act.^  The  latter  alternative  reminds 
one  of  tit.  58  of  the  Salic  code  where  the 
debtor  has  in  the  end  to  pay  with  his  life. 

Lex  Sal.,  58:  ".  .  .  .  et  si  eum  in  compositione 
nullus  ad  fidem  tuUerunt  h.  e.  ut  redimant  de 
quod  non  persolvit,  tunc  de  sua  vita  componat." 

That  these  stages  of  slavery  are  in  general 
preliminary,  artificial,  and  fluctuating  in 
character,  not  based  on  anything  permanent, 

'  G})1.,  c.  71;  FJjL,  X.  26;  Maurer,  Schuldknechlschaft, 
pp.  19,  20;  Amira,  Vol.  II,  pp.  157-58. 


1 8        SLAVERY  IN  GERMANIC  SOCIETY 

is  easily  seen  from  the  fact  that  the  state 
of  servitude  can  be  changed  and  annulled  as 
rapidly  as  it  was  brought  about.  When  the 
captive  by  a  sudden  turn  of  the  fortune  of 
war  is  rescued,  he  is  as  much  a  freeman 
as  before.  The  slave  through  trade  or  the 
enslaved  foreigner'  may  be  liberated  by  a 
sum  equal  to  his  value  in  the  opinion  of  his 
owner,  and  his  rights  as  a  freeman  are  not 
lessened  in  the  smallest  degree.  Moreover, 
the  one  who  is  enslaved  for  offense  or  for 
debt  may  atone  by  a  sufficiently  large  fine,^ 
or  by  restoration  of  the  stolen  property  ,3 
or  the  value  of  it  three  times  (three  times 
three)  ."^  He  may  likewise  be  redeemed  by  a 
third   person.^    Norse   law   in   some   cases 

'  Schroeder,  p.  i. 

'  Eadweard  and  Guthrum's  Laws,  c.  7,  i;  Maurer,  Schidd- 
knechtschaft,  pp.  29,  30.  This  fine  it  was  not  always  pos- 
sible to  pay.  Wilda  may  be  right  when  he  says  that  from  crimi- 
nals of  this  order  the  class  of  unf ree  was  recruited  (pp.  515, 896) . 

3  AethelberhVs  Laws,  c.  6.  ■«  Wilda,  p.  898,  n.  5. 

^Y\>\.,  X.  39;  Amira,  Vol.  I,  p.  127:  "Die  unfreiheit  des 
schuldknechtes  ist  keine  unbedingte  ....  nur  kann  der 
schuldknecht  sich  nicht  selbst  auslosen.     Abverdienen  kann 

er  sein  schuld  nicht "     In  this  respect  the  Swedish 

law  is  evidently  more  severe  than  the  Norse  or  the  English  or 
any  other  law  we  know  of. — Amira,  Vol.  II,  p.  161. 


REDUCTION  19 

even  allows  the  enslaved  debtor,  as  quon- 
dam freeman,  to  keep  something  of  what 
he  earns  or  of  what  otherwise  may  belong 
to  him,  such  as  the  fines  due  him  if  anybody 
without  cause  molests  him  or  his,  thus 
enabling  him  to  pay  off  his  creditor.  But 
this  too  must  be  looked  upon  as  a  later 
improvement  of  what  was  originally  a 
strictly  unfavorable  condition.^  If  these 
things  are  done,  if  the  amount  forfeited 
is  paid  or  security  given  for  the  payment  of 
it,  the  temporary  loss  of  freedom  is  of  no 
account.  The  man  or  woman  thus  liberated 
recovers  his  or  her  natural  rights.  In  the 
sole  case  of  free  men  and  women  who  associate 
with  slaves  and  thus  become  enslaved  them- 
selves the  law  provides  no  relief  unless  it  be 
that  they  buy  their  freedom  as  other  slaves 
must  do.^ 

'  GJ)!.,  c.  71;  Amira,  Vol.  II,  p.  159. 

'  As  an  exception  may  serve  GJ^l.,  c.  198,  according  to 
which  the  free  woman  who  is  enslaved  because  of  unlawful 
relation  to  a  slave  can  under  circumstances  free  herself  by 
paying  a  fine.  It  seems  that  here  the  aristocratic  spirit  is 
either  too  high  for  contamination  or  too  low.  It  is  no  doubt 
safer  to  suppose  the  former. 


20        SLAVERY  IN  GERMANIC  SOCIETY 

The  peculiar  state  of  affairs  on  the  Conti- 
nent or  in  England,  where  the  natural  rights 
of  freedom  are  ceded,  and  more  or  less  direct 
slavery  is  accepted  for  the  sake  of  certain 
benefits,  such  as  protection,  sure' living,  pos- 
session of  land  which  could  not  otherwise  be 
retained,  has  no  correspondent  in  northern 
(Scandinavian  and  Icelandic)  laws.  It  is  the 
result  of  the  fusion  of  conditions  which  came 
about  in  the  conquest  of  Roman  territory  by 
Germans,  and  of  the  system  of  commenda- 
tion with  its  succeeding  subjection  under  the 
munt  of  a  lord  that  had  been  in  practice  even 
before  the  conquest.  This  munt,  in  its 
severity  among  the  Germans,  at  least,  was 
certainly  not  mere  patronage,  but  an  abso- 
lute power  over  the  life  and  property  of  the 
subject,  who  was  accordingly  in  the  position 
of  a  slave,  even  though  he  did  not  bear  that 
name.''  There  are  of  course  numerous  in- 
stances— as  reminiscences  of  Roman  law — 
of  enslavement  through  coming  into  posses- 
sion of  land,  the  free  man  stepping  into  the 

'  Heusler,  Institutionen,  Vol.  I,  pp.  121,  130;  Pollock  and 
Maitland,  Vol.  I,  p.  12:  "Freemen  sometimes  enslaved  them- 
selves in  times  of  distress,"  etc. 


REDUCTION  21 

living  of  a  slave  and  in  this  way  losing 
his  liberty. 

Thevenin,  Charte  157:  "Notum  sit  quod  B.  A. 
devenit  servus  ....  pro  eo  quod  ei  concessimus 
emere  quandam   domum   in  burgo  nostro,   quam 

emit  a  quodam  servo  nostra  nomina Ipse 

et  uxor  ei  .  .  .  ,  et  fiilius  ....  venerunt  in  parla- 
torium  nostrum  et  ibi  positis,  ex  more,  iiiior  denariis 
super  capitibus  suis." 

This  whole  relation  of  quasi-servitude,  how- 
ever, seems  to  be  connected  with  the  begin- 
ning stages  of  serfdom  rather  than  with 
slavery  proper,  inasmuch  as  the  element  of 
personal  freedom  at  first  ceded  uncon- 
ditionally is  not  permanently  lost,  but  is 
retained  in  the  later  development  of  the  rela- 
tion, even  though  the  economic  subjection  is 
the  same.  ( J2  <J 

B.      PERMANENT   STATE 

The  second  main  point  in  our  inquiry  con- 
cerns the  character  of  slavery  when  become 
permanent  and  the  outgrowth  of  natural 
conditions.  Society  has  now  formed  itself 
within  certain  limits  of  recognized  law  and 


22        SLAVERY  IN  GERMANIC  SOCIETY 

order;  peace  is  restored;  property  once 
acquired  remains  in  the  hands  of  the  owners, 
the  slave,  too,  remains  in  the  position  created 
for  him  without  any  prospect  of  change. 
Indeed,  his  situation  is  continued  indefinitely 
by  the  very  fact  that  he  has  children  born  in 
this  humiliating  state,  who  are  the  justifica- 
tion for  its  continuance.  In  other  words, 
"a  race"  of  slaves  is  created  by  means  of 
propagation.  That  this  idea  of  propagation 
is  really  a  fundamental  principle,  decisive 
and  invincible  in  slavery,  is  seen  from  the 
tacit  understanding  that  pervades  history 
and  laws  alike,  even  if  nothing  is  definitely 
stated.  This  principle  may  properly  be 
formulated  thus:  "Slave  is  child  born  of 
slave,"  even  if  the  father  be  free — a  sentence 
as  clear  and  comprehensive  as  if  it  were  from 
the  code  of  Justinian. 

G))l.,  c.  57  (concerning  the  identity  of  the  slave- 
born):  ".  .  .  .  he  shall  be  the  father  of  a  child 
[of  a  slave]  whom  the  mother  declares  to  be.     Now 

she  accuses  a  slave  of  being  the  father Now 

she  accuses  a  free  man,  ....  then  that  child 
is  his  slave-born  child"  (whom  he  can  manumit 
by  taking  it  to  church  before  it  is  three  years  old 


REDUCTION  23 

and  there  liberating  it)   (otherwise  it  remains  his 

slave).  ^ 

"Slave  is  child  born  of  slave."  This  had 
been  agreed  upon  long  before  the  laws  were 
written;  it  was  a  social  axiom  that  nobody 
needed  to  discuss.  The  appearance  of  the 
slave,  his  miserable  clothing,  his  low  stature, 
his  often  mutilated  or  deformed  body,  his 
branded  and  scarred  skin,  his  short,  bristly 
hair,  and  the  insignia  he  bore,  indicated  not 
only  his  position,  but  equally  often  his 
type;  and  nobody  questioned  that  whatever 
came  of  a  slave  must  have  characteristics 
that  made  association  and  assimilation  with 
the  free  impossible. 

What  was,  then,  on  the  whole,  the  con- 
dition of  the  slave  ?  It  seems  impossible  to 
answer  this  question  properly  except  by 
some  reference  to  Roman  law  and  custom. 

The  view  has  often  and  vigorously  been 
put  forth  that  the  condition  of  the  slave 
among  Germanic  races  was  essentially  differ- 
ent from  that  among  the  Romans. ""    It  is 

'  Cf.  Schroeder,  p.  46. 

*  There  is  no  doubt  that  slavery  became  ameliorated  among 
the  Germanic  races  from  esclavage  to  "servitude,"  as  Guerard 


24        SLAVERY  IN  GERMANIC  SOCIETY 

said  that  the  idea  of  individuahty  opened  a 
new  epoch  in  the  history  of  civiHzation, 
and  brought  some  benefit  also  to  the  slave. 
According  to  this  opinion,  the  idea  of  indi- 
viduality is  manifested  among  the  Germans 
in  favorable  contrast  to  the  idea  of  the  col- 
legiality  and  the  mechanical  character  of 
the  state  among  the  Romans.  With  the 
Germans  even  the  slave  had  an  individuality, 
and  it  was  respected  as  such. 

But  is  not  this  viewing  the  situation  with 
eyes  blinded  with  prejudice  in  favor  of  the 
German — seeing  him  as  he  came  to  be,  not 
as  he  was  ?'    The  present  study  has  given  me 

expresses  himself  (Polyptique,  Vol.  I,  p.  277).  This  is  due 
chiefly  to  Christianity,  which  impressed  its  commands  more 
easily  on  the  crude  but  more  receptive  German  mind  than  on 
the  skeptical  Roman.  One  who  wishes,  however,  to  know 
what  slavery  was  reaUy  like  among  the  original  Germans 
must  take  off,  as  best  as  he  can,  the  layers  which  Christianity 
deposited,  and  gather  the  evidences  of  the  warrior  spirit  and 
the  strong  pagan  class  feeling. 

'  Jastrow,  the  most  penetrating  of  the  German  investi- 
gators in  this  field,  seems  to  think  differently  from  most  other 
scholars.  In  fact,  he  emphasizes  slavery  (esclavage,  not  servi- 
tude) as  existing  even  during  the  Carolingian  period. — Ziir 
strafrechtlichen  Stellung,  etc.,  p.  26,  n.  2,  as  contrasted  with 
Waitz,  Verfassungsgesch.,  Vol.  II,  p.  230,  "Romische  Ge- 
wohnheiten,"  etc. 


REDUCTION  25 

some  opportunity  to  compare  Roman  and 
Germanic  institutions,  and  has  furnished  a 
curious  commentary  on  the  value  of  this 
behef  in  the  more  humane  conception  of  the 
slave  among  the  German  races.  In  legal 
consideration  for  the  slave,  the  views  of  the 
two  races  seem  to  coincide  to  a  rather  remark- 
able degree.  One  might  think,  indeed,  that 
the  similarity  would  be  found  especially  in  the 
Salic  or  the  Burgundian  laws,  but  it  exists  also 
in  laws  of  the  purest  Germanic  origin,  such 
as  the  Scandinavian  or  the  old  English  laws.^ 
If  we  peruse  the  Roman  code  with  its 
strictly  logical  development  of  the  idea  of 
slavery  and  compare  each  important  state- 
ment with  corresponding  instances  in  Ger- 
manic laws  of  almost  all  kinds,  we  find  little, 
if  any,  difference  in  meaning.  The  main 
idea  is  very  much  the  same,  even  if  the 
Roman  is  a  system  perfected  to  the  utmost 
nicety  in  reasoning  out  the  final  conclusion, 
while  the  Germanic  is  only  a  rough  draft, 
as  it  were,  less  exact  in  wording — a  prelimi- 
nary   effort  toward   specifying    in    definite 

'  Waitz,  op.  cit. 


26        SLAVERY  IN  GERMANIC  SOCIETY 

terms  a  relation  that  had  long  been  a  matter 
of  practical  life.  If  there  is  any  difference, 
it  is  temperamental,  manifested  in  carrying 
out  the  letter  of  the  law,  rather  than  jurid- 
ical, in  establishing  the  line  of  conduct.  But 
upon  all  this  the  evidence  of  the  sources  is, 
after  all,  so  meager  that  it  is  more  a  suggestion 
than  a  certainty  which  we  are  able  to  offer.^ 

The  condition  of  the  slave  under  Germanic 
law  may  be  condensed  into  sentences  such 
as  these: 

1.  The  slave  is  an  article  of  property. 

2.  The  slave  has  no  personal  rights. 

3.  His  existence  is  vested  in  that  of  his 
master. 

4.  Aside  from  his  relation  to  his  master, 
the  slave  has  no  place  in  society. 

That  is,  the  laws  do  not  say  these  things 
in  so  many  words;  they  do  not  put  down 
the  relation  in  such  plain  terms  as  the 
Roman  laws  do;  "servitus  est  dominio 
alterius  subjicitur,"  i.e.,  the  slave  is  a  being 
who,  instead  of  belonging  to  himself,  is  sub- 

'  Pollock  and  Maitland,  Vol.  I,  p.  2:  "They  [the  laws]  are 
intelligible  only  when  they  are  taken  as  part  of  a  whole,"  etc. 


REDUCTION  27 

jected  by  right  of  ownership  to  another  man ; 
but  the  words  the  Germanic  laws  use,  and  the 
meanings  these  convey,  express  exactly  the 
same  thing. 

I.  The  slave  in  the  severest  form  of  servi- 
tude— and  it  is  with  this  that  we  are  at 
present  dealing — is  but  a  thing  that  can  be 
owned;  and  his  relation  is  indicated  in 
terms  which  leave  no  doubt  as  to  absolute 
o^vnership.'  When  the  laws  place  the  slave 
on  the  level  of  cattle  and  other  mobilia,  they 
are  just  as  comprehensible  as  the  Latin 
expression  res,  and  the  conclusion  to  be 
drawn  is  equally  simple  and  exhaustive.^ 
In  Norse  law  we  have  the  expression  fe 
concerning  slave  in  the  sense  of  chattel 
(Lat.  pecunia,  as  distinguished  from  manci- 
pium);^    also  that  a  slave  is  a  man's  man 

'  Amira,  Vol.  I,  p.  736:  "Es  gehoren  aber  zu  den  kost- 
barkeiten  gold,  silber,  unfreie  leute,"  etc. 

'  Lex  Sal.,  47:  "Si  quis  servum  aut  caballum  aut  boven," 
etc.;  likewise  10,  i;  Lex  Rib.,  72,  i,  Cham.  25;  Lex  Fris.,  tit. 
iv.  I,  2. 

3F)j1.,v.  18:  "En  {jat  seal  vera halfgilltfeerfespillir  horns, 
oc  hofs,  oc  }>raels";  Fritzner,  Ordbog;  Wobius,  Glossar; 
cf.  the  expression  of  American  slaveholders:  "A  menial  is  not 
a  man." 


28        SLAVERY  IN  GERMANIC  SOCIETY 

{mans-madr)  in  the  double  sense  of  being 
his  slave  and  belonging  to  his  household.' 
Words  such  as  skalks,  peow,  praell,  sveinn 
{Glph,  c.  69,  "Um  abyrgd  sveins  mans"), 
and  others  express  servitude  of  the  lowest 
character  with  an  emphasis  on  the  meanness, 
contemptible  nature,  of  the  individual  which 
has  maintained  itself  even  to  the  present  day.^ 
Since  he  belongs  to  the  movables,  a  slave 
can  as  well  be  given  away  as  sold  or 
inherited  or  used  as  payments  of  debt 
(fines). 

Amira,  Vol.  I,  p.  465:  "Unfreie  leute  die  zur 
mitgift  einer  frau  gehort  haben  und  vom  manne 
verkauft  oder  bei  ihm  ausgelost,"  etc.;  p.  723: 
"Unfreie  sind  sachen.  Daher  konnen  totung, 
verstiimmelung,  verwundung  eines  unfreien  nur 
als  sachen-beschadigung,"  etc.;  Grimm,  R.A., 
pp.  342-43:  Die  knechte  sind  sachen  dem  herrn 
eigenthiimlich  .  .  .  .  er  darf  sie  wie  thiere  be- 
handeln;  ....  den  knecht  kann  der  herr  gleich 
anderer   waare   verkaufen,    es   versteht   sich   von 

'  G1>1.,  c.  20:  "Nu  ef  etr  man  mans  kj6t  a  freadogum,"  etc.; 
c.  22:  "En  ef  spillir  man  manna  barne  sinu  heiSnu  e'5a 
christnu,"  etc.;   Fritzner,  Ordbog;   Mobius,  Glossar. 

^  Grimm,  R.A.,  pp.  301-4;  cf.  the  present  use  of 
"villain." 


REDUCTION  29 

selbst,  dass  der  knecht  wie  verkauft  auch  ver- 
pfandet,  verschenkt,  vertauscht,"  etc/ 

The  slaves  of  a  household  may  be  divided 
or  held  in  common  like  other  property. 

Laws  of  Eadgar,  i.  2,  i:  ".  .  .  .  the  rest  to  be 
divided  in  two,  half  to  the  hundred,  half  to  the  lord, 
except  the  servants,  those  the  lord  shall  have,  all 
of  them."^' 

And  the  slave  himself  can  be  divided,  i.e., 
he  works  some  time  for  one  master,  some 
time  for  another.^  He  can  also  be  let  or 
hired  as  well  as  used  as  security  for  debt 
(other  than  fines). ^  Roman  jurisprudence 
advances  the  view  that  the  fugitive  slave 
commits  a  theft,  and  allows  the  master  to 

'  Donations  of  slaves  to  the  church:  Tardif,  Monuments 
hisloriques,  V^  part,  Cartons  d.  Rois,  No.  90  (790  a.d.).  Nos. 
93  (794  A.D.),  182,  227,  321,  562. 

2  Grimm,  R.A.,  p.  343:  "Theilung  der  kinder  zwischen 
mehrerc  herrn";  Amira,  Vol.  I,  p.  296. 

^Jastrow,  p.  13,  n.  5;  Geffcken,  Lex  Sal.,  35,  i,  and 
p.  150- 

4  GJ)1.,  c.  223:  "Giallda  svena  Jja  alia  er  heima  ero  alnar"; 
c.  274,  69:  "Now  a  man  hires  another  man's  slave,"  etc.; 
Grimm,  R.A.,  343:  "Eine  ancilla  ist  der  preis  fiir  pferd,  schild, 
und  lanze";  Coulanges,  Institutions  {U Invasion  germanique), 
p.  82:  "  Proprietarius  servo  cujus  usufructus  ad  alium 
pertinet." 


30        SLAVERY  IN  GERMANIC  SOCIETY 

pursue  him.^  Germanic  law,  too,  admits 
this  right : 

Aethehtan's  Laws,  vi.  6,3:  " But  if  the  slave  stole 
[himself]  away^  .  .  .  .";  Leg.  Lang.,  Roth.,  c.  281: 
" .  .  .  .  the  one  who  gives  a  fugitive  slave  food  and 
keeps  him  more  than  a  day  shall  pay  his  value  to 
the  master"; 

and  whoever  brings  back  the  fugitive  may- 
expect  a  reward.^  The  man  that  kills  the 
slave  of  another  shall  make  good  the  loss 
by  paying  the  price  of  the  slave.  In  Swed- 
ish law  this  is  half  the  value  of  a  cow  or  of  a 
horse  or  3  marks  in  money."*  But  there  are 
instances  of  a  slave  being  valued  higher. 

Amira,  Vol.  I,  p.  464:  " ....  8  mark  fiir  den  im 
hause  geboren  unfreien,  3^  mark  sollen  (nach  jiinger 
redaktion  von  Westmannalagen)  fiir  den  gemeinen 
unfreien  gegeben  werden,  7  mark  aber  wenn  einer, 

'  Coulanges,  p.  84:  "Servum  fugitivum  sui  furtum  facere"; 
Digest,  xlvii.  2,  60;  Cod.  Just.,  vi.  i,  i. 

'See  Maurer,  Kr.  Uberschau,  Vol.  I,  p.  410;  cf.  G]>\., 
c.  71,  where  the  enslaved  debtor  "steals"  away  and  causes 
loss  to  creditor. 

3GJ)1.,  c.  68;  cf.  G])\.,  c.  40;  Grimm,  R.A.,  p.  345,  S: 
"Der  knecht  darf  sich  nicht  von  dem  grund  und  boden  ent- 
feraen Ire  debet  quoque  sibi  jubatur." 

4  Amira,  Vol.  I,  p.  395:  "Drei  mark  silber  ....  werth 
betrag  des_unfreien." 


REDUCTION  31 

der  des  bauern  schliissel  fuhrt,  im  hof  erschlagen 
wird";  further,  pp.  483,  656. 

And  it  is  most  common  to  prize  him  accord- 
ing to  his  usefulness. 

See  Lex  Sal.,  x.  Add.  4;  cf.  G)?!.,  c.  182:  "Nu 
drepr  maSr  J^rael  annars  mannz,  pa  seal  hann 
boeta  aptr  sem  men  meta  noectan  hann."  "Then 
he  [the  guilty  party]  shall  pay  according  to  what 
men  value  him  [the  slave]  naked."  Here  it  is  the 
slave  rather  than  his  occupation  which  determines 
the  price. 

Hence  the  value  varies  exceedingly/ 

The  fine  for  injuring  a  slave  is  represented 
by  the  value  of  the  slave,  not  by  any  fraction 
of  a  wergeld,  as  would  be  the  case  with  a 
freeman.  In  Norse  law  the  lord  is  to  have 
his  loss  refunded  if  the  slave  is  rendered 
useless  by  carelessness  or  mutilation,  or  if  he 
is  murdered. 

G])\.,  c.  69:  "Now  someone  borrows  the  slave 
of  another,  then  he  shall  be  responsible  that  the 
slave  be  not  sent  across  a  dangerous  river  or  ice,  or 
where  bears  lie,  or  on  dangerous  mountains,  or  on 

'  With  the  Franks  the  ordinary  slave  is  worth  from  12  to 
15  sol.;  a  laborer  or  artisan,  25  to  40;  a  blacksmith,  50;  an 
expeditionalis,  55;  a  silversmith,  100;  a  goldsmith,  150; 
see  Gu^rard,  Vol.  I,  p.  295;  Wilda,  p.  351. 


32        SLAVERY  IN  GERMANIC  SOCIETY 

the  sea  in  storm,  or  into  any  other  dangerous  place. 
And  if  the  slave  should  perish  thus,  ....  the 
man  who  borrowed  him  shall  pay  for  him  to  the 

owner Now  the  slave  lies  sick  or  wounded, 

then  he  shall  be  allowed  to  lie  thus  a  week,  later 
he  shall  be  brought  to  the  owner,"  etc. 

Ibid.,  c.  215:  "All,  thegn  or  thrall,  shall  have 
compensation  equally  for  wounds.  And  if  anybody 
wounds  another  man's  slave,  he  shall  maintain 
that  slave  while  ill  and  pay  the  lord  for  the  work  the 
slave  ought  to  be  doing  and  the  physician  besides."' 

When  buying  a  slave  the  master  must  be 
protected  by  the  presence  of  witnesses  from 
getting  one  with  hidden  faults. 

G\>\.,  c.  57:  ".  .  .  .  kaupa  saman  lagakaupi 
oc  lyritar"  (lawful  purchase  in  the  presence  of  three 
witnesses). 

FJ?1.,  v.  41:  "Ef  maSr  kaupa  man  at  manne," 
etc.    (epilepsy,    cramps,    and    rheumatism,    owing 

'  Wilda,  p.  351:  "  Verstiimmelt  man  eines  mannes 
sclaven  ....  so  erstatte  man  ihn  wieder  mit  seinem  vollen 
werthe  oder  gebe  einen  anderen  dafiir"  (Swedish  law  OG. 
Vap.,  m.  c.  16,  sec.  2);  Amira,  Vol.  I,  p.  461:  "Eines  fremden 
imfreien  oder  ein  fremdes  thier  das  man  absichtlich  oder  von 
ungefahr  verstiimmelt  hat,  ersetzt  man  durch  heferung  eines 
unverstiimmelten,  wogegen  man  selbst  das  verstiimmelte 
erhalt,"  etc.;  ibid.,  p.  656:  "7  mark  vajjabot  zahlt  der  ent- 
leiher  eines  unfreien,  wenn  er  ihn  zum  holzfallen  beniitzt  und 
der  unfreie  dabei  seinen  tod  gefunden  hat"  (Upl.,  Mb.  6,  sec.  4, 
translated  fully  on  p.  483,  g). 


REDUCTION  33 

to  poor  food  and  hard  work  and  exposure,  seem  to 
have  been  common  ailments  among  the  slaves,  which 
the  purchaser  had  to  look  out  for) ;  Wilda,  p.  202 : 
".  .  .  ,  fiir  die  missethaten  des  sclaven  wolle  er 
(Gunnar)  keine  busse  geben,  weil  ihm  der  gegner 
beim  verkauf  desselben  seine  fehler  verborgen 
habe"  (Njdlssaga).^ 

The  sale  must  be  a  bona  fide  sale,  other- 
wise it  is  void.^  From  one  to  three  days, 
six  days,  two  weeks,  one  month,  two  months, 
or  a  whole  year  (Amira,  Vol.  I,  p.  570), 
seems  to  be  the  time  for  trial  allowed  the 
purchaser. 3 

2.  The  slave  has  no  personal  rights,  i.e., 
(a)  he  is  no  equal ;  (6)  he  cannot  defend  him- 
self;   (c)  the  difference  between  him  and  the 

'  Amira,  Vol.  I,  p.  284:  ".  .  .  .  der  kauf  gewisser  sachen, 
wenn  er  nicht  auf  offener  strasse  geschieht  dedarf  des  'vitni' 
zu  seiner  form.  Diese  sachen  sind  unfreie  knechte,  vieh  mit 
horn  Oder  huf ";  ibid.,  p.  569:  "Nach  dem  kauf  eines  unfreien 
hingegen  darf  der  kaufer  innerhalb  einer  sechstagigen  probe- 
frist  ohne  entgelt  das  geschaft  riickgangig  machen." 

'  Marculf.,  Vol.  II,  p.  22;  Form.  Sirmond.,  9;  Lex  Bajttw., 
tit.  XV.  sec.  9  (cf.  GJjI.,  c.  44);  Form.  Bignon.  3  (and  5). 

^  FJjI.,  v.  41,  speaks  of  "niu  dr"  (nine  years),  which  is  to  be 
understood  as  a  lapsus  for  "ny  hit  naesta,"  which  means  the 
next  moon,  i.e.,  within  a  month;  see  Amira,  Vol.  II,  p.  700, 
n.  2. 


34        SLAVERY  IN  GERMANIC  SOCIETY 

freeman  is  enormous;  (d)  for  whatever 
he  may  be  incHned  or  be  supposed  to  assume 
he  can  be  peremptorily  punished.  These 
restrictions  are,  of  course,  most  plainly 
shown  in  the  relation  of  the  slave  to  the 
free.'  Class-feeling  or  race-difference  is  very 
marked  in  all  laws  f  it  strikes  the  freeman  as 
well  as  the  slave.  The  free  man  or  woman 
who  joins  a  slave  is  enslaved,  and  his  or  her 
belongings  go  to  the  lord  of  the  slave.^ 
If  a  slave  accuses  a  freeman  of  the  theft 
he  has  himself  committed,  he  is  to  die. 

G])\.,  c.  262:  "Nu  kenner  maSr  jjraele  manns 
herlennskum,"  etc.  "Now  someone  accuses  a  slave 
born  in  this  country  of  having  committed  theft 
....  if  the  slave  is  tortured  ....  [and]  declares 

^"tJberhaupt  giebt  es  nur  zwei  stande:  den  volkfreien 
(folkfraels)  welcher  rechtsgenosse  ist  und  den  unfreien  welcher 
landrechts  und  wergelds  darbt." — Amira,  Swedisches  Obli- 
gationenrecht,  p.  19.  This  statement,  although  not  corre- 
sponding to  the  conditions  of  the  rest  of  Germanic  society 
(where  the  colonus  and  the  litiis  appear  as  intermediate  layers), 
holds  good  everywhere  in  regard  to  the  slave;  see  Grimm, 
R.A.,  p.  349,  F.  1-3. 

^  Lex  Rib.,  tit.  vii  and  viii  give  one  instance  among  a  thou- 
sand. 

^  Lex  Sal.,  tit.  13,  8  and  9;  25,  5  and  6;  c.  ii.  i;  c.  ix.  3 
("LudoviciPii"). 


REDUCTION  35 

a  freeman  to  be  the  thief,  the  slave  shall  be  kept  as 
security  ....  but  if  the  freeman  can  free  himself 
the  slave  shall  be  killed. 

If  a  freeman  is  murdered  or  wounded  by  a 
slave,  even  though  unintentionally,  the 
slave  is  not  excused.  To  the  Germanic 
mind  the  deed  done  is  sufficient  to  condemn 
the  doer.  In  this  particular,  in  fact,  the 
slave  is  not  worse  off  than  is  the  freeman.' 
If  a  slave  beats  a  freeman,  he  is  to  die,^ 
unless  the  lord  can  buy  him  free. 

GIjI.,  c.  204:  "Ef  J?raell  lystr  mann  frjalsan,"  etc. 
"If  a  slave  strikes  a  freeman,  his  lord  shall  compen- 
sate the  one  who  is  struck,  or  he  shall  make  the 
slave  an  outlaw." 

But  if  a  freeman  beats  a  slave,  it  is  of  no 
consequence,  except  in  so  far  as  it  should 
make  the  slave  unable  to  perform  his  custom- 
ary labor. 

'  Amira,  Vol.  I,  p.  707,  n.  8.  The  question  how  ordinarily 
it  is  possible  for  a  slave  to  inflict  a  wound  is  to  some  extent 
solved  by  G})1.,  c.  56,  which  ordains  that  the  slave  may 
manage  no  purchase  except  that  of  his  knife;  this  necessary 
tool  was  his;  if  it  became  useless,  he  could  buy  himself  a 
new  one. 

'  Amira,  Vol.  I,  p.  716  (cf.  p.  394). 


36        SLAVERY  IN  GERMANIC  SOCIETY 

Lex  Sal.,  35,  3,  i:  "Si  quis  servum  alienum  bat- 
terit  et  ei  super  noctes  40  opera  sua  tricaverit,  sol.  i 
et  ^  culpab.";  also  Lex  Rib.,  xix.  i. 

If  a  slave  kills  a  freeman,  he  is  given  over  to 
the  vengeance  of  the  relatives.^  The  abusive 
language  of  a  slave  cannot  injure  anybody's 
honor.  If  his  abuse  becomes  offensive, 
the  slave  must  be  looked  on  only  as  the 
mouthpiece  of  the  lord.^ 

The  slave  is  no  member  of  the  community, 
and  cannot  be  outlawed,  otherwise  he  would 
be  only  too  glad  to  break  the  peace,  "  weil  die 
landfiuchtigkeit  ihm  die  freiheit  gegeben 
haben  wiirde"  (Wilda,  p.  654).^  In  order 
to  bring  a  slave  who  has  committed  a  crime 
to  confess,  torture  is  permissible. "• 

'  Lex  Sal.,  35,  5. 

^Amira,  Vol.  I,  p.  717,  B;  cf.,  Edict.  Theod.,  48,  where 
freedmen  and  slaves  may  not  give  evidence  against  their  lords 
or  patrons  in  court;  but  see  Leg.  Visig.,  vi.  4,  7. 

3  Amira,  Vol.  I,  p.  392.  Cf.  with  the  foregoing  GJ?1.,  c.  204, 
which  belongs  decidedly  to  a  later  period,  when  the  slave 
is  being  made  individually  responsible  for  his  acts,  and  suffers 
punishment  as   does  the  freeman.     See  next  main  division. 

''  Jastrow,  p.  16,  n.  20.  Whipping  to  an  extreme  degree 
seems  to  have  been  the  most  common  torture,  but  the  sources 
show  that  there  were  other  kinds  as  well.  Guerard,  Vol.  I, 
p.  313,  n.  11:  "C'etait  a  I'accusateur  a  fournir  le  chevalet,  les 


REDUCTION  37 

G)?!.,  c.  262;  F])p.,  X.  40:  ",  .  .  .  en  hann  pina 
hann  til  sannar  sogur,"  ".  .  .  .  torture  him  till 
he  tells  the  truth." 

That  the  slave  is  a  desperate  part  of  society 
becomes  only  too  clear  from  sentences  such 
as  these.  All  low  deeds  are  ascribed  to  the 
slave,  because  a  permanent  evil  intent  must 
needs  be  his  true  nature.  The  old  English 
name  for  slave,  peow,  has  close  affinity 
to  the  word  expressing  theft,  peof. 

G])\.,  c.  154:  "Nu  ganga  menn  fiorer,"  etc. 
"Now  four  men  walk  on  the  road  and  one  commits 
manslaughter  and  kills  his  comrade,  then  he  is 
guilty  who  says  he  is.  But  if  a  slave  is  with  them, 
then  he  is  the  killer  of  that  man,  if  they  say  so"; 
ibid.,  c.  255:  "En  ef  J^eirra  er  hvargi  til  pa.  er  bryti 
l^iofr  at,"  etc.  "But  if  none  of  these  [freeborn 
members  of  the  household  by  whom  the  stolen 
object  might  be  concealed]  is  at  home,  then  the 
foreman  of  the  slaves  is  the  thief.  "^ 

verges,  de  la  grosseur  du  petit  doigt,  ainsi  que  les  autres 
instruments  de  torture  en  usage"  {Lex  Sal.,  tit.  40,  i  and  6); 
Grimm,  R.A.,  c.  iii.  B. 

'  Wilda,  p.  860:  ".  .  .  .  gegen  besonders  gehassige  und 
gefahrliche  beeintrachtigungen,  die  vorzugsweise  von  geringer 
geachteten  personen,  unfreien,  besitzund  heimatlosen  geiibt 
zu  werden  pflegten,  schutz  zu  verschaffen " ;  Grimm,  R.A., 
p.  303:  "Indessen  hat  schalk  den  heutigen  sinn  eines  losen, 
bosen,  schlauen  menschen." 


274,'',5 


38        SLAVERY  IN  GERMANIC  SOCIETY 

When  we  observe  how  the  slave  is  pun- 
ished in  a  way  far  worse  than  death,  we  see 
that  it  is  inevitable  that  he  should  become 
absolutely  brutalized  and  the  lowest  of  all 
human  beings,  the  scoundrel  par  excellence^ 
During  this  period  of  uncompromising  sever- 
ity the  slave's  personaUty  is  ignored,  is 
looked  on  as  non-existent,  bound  up  with 
that  of  his  master ;  and  thus,  inasmuch  as  the 
slave  has  no  personal  rights,  he  has  likewise 
no  obligations;  he  cannot  be  considered 
responsible  for  his  doings.  As  a  matter  of 
course,  his  master  is  responsible  for  him,  i.e., 
the  slave  exists  only  by  and  in  his  master. 

Lex  An'gl.,  i6:  "Omne  damnum  quod  servus 
fecerit  dominus  emendet."^ 

Roman  and  German  alike  look  on  the  slave 
as  irresponsible;^  the  slave  is  a  being  entirely 
too  powerless  to  do  anything  independently. 
"A  slave  shall  not  be  called  the  bane  of  any 
man." — Wg.  i.  Md.  4,  in  Wilda,  p.  656;  Amira, 
Vol.  I,  p.  394. 

'  See  the  frequent  mention  of  whipping.  The  slave  must 
often  have  been  beaten  to  death,  since  it  is  impossible  that  he 
should  stand  240  to  300  blows  (Wilda,  pp.  510-14). 

'  Jastrow,  pp.  10,  14.      3  Coulanges,  p.  85;  Jastrow,  p.  12. 


REDUCTION  39 

The  slave  is  only  an  instrument  in  the  hands 
of  the  free. 

G]>\.,  c.  261 :  "Nu  stela  Jjeir  stuld,"  etc.  "Now  a 
freeman  and  a  slave  steal  together,  then  he  is  the  thief 
who  is  free,  but  the  slave  shall  not  be  counted,  for  he 
steals  alone  who  steals  with  another  man's  slave. "^ 

The  slave  is  an  animal;  inasmuch  as  he 
has  no  rights,  he  has  likewise  no  guilt,  the 
only  one  who  holds  a  responsible  position 
is  the  freeman,  the  master  and  lord.  The 
law  always  refers  to  him  as  the  only  one  who 
can  give  satisfaction. 

Lex  Sal.,  tit.  12,  2:  "Domino  vero  servi  qui 
furtum  fecit  capitale  et  delaturam  requirenti 
restituat."    Lex  Sal.  (ed.  Walter),  xi.  i:  "Quicquid 

servus iubente  domino  perpetraverit,  domi- 

nus  emendet";  and  2:-  "Not  even  in  case  the  slave 
runs  away  can  the  lord  be  looked  upon  as  free  from 
obligation."^ 

Roman  law  puts  this  equally  definitely; 
according  to  it,  the  slave  is  virtually  nobody; 

'  Wilda,  pp.  613,  632,  633;  Amira,  Vol.  I,  p.  392:  ".  .  .  . 
der  unfreie  iiberhaupt  nicht  selbstandig  handelt,  sondern 
werkzeug  des  freien  ist." 

^  He  must  at  least  pay  for  the  damage  the  slave  has  done. 
If  the  lord  in  order  to  escape  responsibihty  sells  the  slave,  the 
sale  is  void  {Leg.  Visig.,  iv.  18). 


40        SLAVERY  IN  GERMANIC  SOCIETY 

if  he  commits  a  crime  it  is  his  master  who  is 
made  responsible;  a  crime  committed  against 
a  slave  justifies  the  master  in  making  a  com- 
plaint and  demanding  indemnity. 

Digest,  iv.  5,  3 :  " .  .  .  .  quia  servile  caput  nullum 
jus  habet";  ix.  4,  2:  ".  .  .  .  dominus  suo  nomine 
tenetur,  non  servi."^ 

As  the  master  takes  all  responsibility  for  the 
actions  of  the  slave,  so  he  possesses  all  right 
to  punish  him.^  This  right  to  punish  he 
yields  to  the  offended  party,  if  the  latter  can 
only  thus  be  satisfied. ^  As  for  the  kinds 
of  punishment,  see  Wilda,  pp.  509-15.  The 
master  is  omnipotent;  no  power  can  inter- 
fere." Whatever  a  master  does  to  his  slave 
cannot  be  counted  against  him. 

FJ7I.,  V.  20:  "  If  a  man  kills  his  slave  ["  drepr  Jjrael 
sinn  til  dauSs"]  then  he  shall  make  it  known  during 

'  Coulanges,  p.  87;  Mommsen,  Romisches  Strajrecht, 
p.  79 :  "  Es  hat  eine  epoche  gegehen,"  etc. 

^  I  am  aware  of  no  particular  statement  to  this  effect,  but 
the  jurisdiction  of  the  lord  is  the  outcome  of  this  proprietor- 
ship. 

2  In  this  right  of  the  offended  party  to  punish  lies  the  germ 
of  a  social  relation  for  the  slave,  his  acquiring  a  personality. 

1  Coulanges,  Roman  Law,  p.  87:  "Ces  regies  du  vieux 
droit  romain  ....  avaient  pour  consequence  naturelle,"  etc. 


REDUCTION  41 

that  same  day,  and  not  be  responsible  to  anybody 
except  God";  GJ)1.,  c.  182:  "Now  a  man  is  accused 
of  having  killed  his  slave,  ....  the  act  shall  be 
made  known,  otherwise  it  is  murder"  (in  this  case 
it  is  punished) ;  Aelfred's  Laws,  Introd.,  p.  17 :  "If  a 
man  strikes  his  own  slave  (male  or  female),  who 
does  not  die  that  same  day,  but  lives  two  or  more 
days,  then  that  man  is  not  quite  so  guilty,  because 
it  was  his  own  property." 

The  position  of  the  master  as  the  one  between 
society  and  the  slave  is  so  marked  that  it  is 
only  natural  if  at  this  point  the  fate  of  the 
slave  and  the  action  of  the  law  cease  to  have 
any  connection  with  each  other. ^ 

Thus  the  foregoing  sentences  lead  neces- 
sarily to  the  conclusion: 

3.  Outside  of  his  relation  to  his  master 
the  slave  has  no  place  in  society.  And  if  he  is 
punishable  for  crimes  that  the  master  cannot 
or  will  not  come  up  for,  the  outcome  must  be 
death. 

GJ?1.,  c.  163:  "Nu  er  sveini  manns  vig  kent," 
etc.     "Now   someone's   slave   is   known    to   have 

■  Even  the  church  does  not  always  see  fit  to  interfere 
(Guerard,  Vol.  I,  p.  312,  n.  10).  The  church  causes  slavery 
to  be  decreed  as  punishment  for  (canonically)  illicit  marriages 
{Leg.  Alamann.,  c.  39;  Lex  Bajuw.,  vi.  i,  3). 


42        SLAVERY  IN  GERMANIC  SOCIETY 

committed  manslaughter  [manslaughter  being  the 
confessed  killing  of  a  man,  murder  the  secret  killing], 
then  the  lord  shall  protect  him  with  such  oath  as  he 
protects  himself  with.  If  the  oath  falls,  the  lord 
himself  becomes  an  outlaw;  and  if  he  will  not  give 
oath  for  the  slave,  he  will  have  to  give  him  up"; 
Wilda,  p.  501,  n.  2;  OG.  Dc,  13:  "If  a  lord  will  not 
pay  for  the  slave  who  has  killed  a  freeman,  then  a 
branch  of  oak  shall  be  taken  and  bound  around  the 
neck  of  the  slave  and  he  be  hung  above  the  man's 
door." 

This  relation  is,  of  course,  one  of  absolute  sub- 
mission on  the  part  of  the  slave  and  certain 
all-encompassing  rights  on  the  part  of  the 
master.  Any  case  of  disobedience  or  treach- 
ery meets  with  no  pardon;  absolute  power 
over  life  and  death  is  the  prerogative  with 
which  every  society  endows  the  master  in 
regard  to  his  household  and  his  slaves.^ 

'  Grimm,  R.A.,p.  ^o:  " Der leibeigene  knecht  im  strengsten 
sinn  muss  zu  dem  willen  seines  herrn  sogleich  bereit  sein"; 
Wilda,  p.  575:  "Die  Graugans  [Iceland]  setzte  den  hochsten 
preis  auf  den  kopf  eines  sclaven  oder  eines  mannes  der  sich  um 
eine  schuld  abzudienen  zu  eigen  gemacht  und  durch  todtung 
seines  herrn,  seiner  leiblichen  oder  pflegekinder  friedlos 
geworden.  Nach  swedischem  gesetz  [Uplandslag]  ein  dienst- 
mann  sowohl  als  ein  freier  oder  unfreier  knecht,  der  seinen 
herrn  etc.  todtet,  soli  geriidert  werden  und  all  sein  gut  ver- 
wirkt  haben." 


REDUCTION  43 

The  law  seems  to  know  no  obligation  of 
the  master  to  his  slave.  That  is  entirely 
a  matter  of  private  concern  and  self-interest 
with  the  master;  as  is  also  the  necessity  for 
the  slave  to  get  into  his  master's  good  graces 
a  matter  of  self-preservation  in  which  the 
law  can  take  no  interest.  As  far  as  his- 
torical record  is  concerned,  there  is  rather  an 
impenetrable  veil  over  the  private  relation 
of  the  slave  to  his  master;  and  perhaps  it  is 
better  so.  An  instance  only  now  and  then 
throws  a  faint  light  upon  the  subject. 

A  most  important  connection  between  the 
master  and  the  slave  exists  in  the  fact  of  the 
slave's  performing  a  certain  amount  of  work 
in  the  house  or  on  the  farm  of  the  master.  In 
the  northern  laws  the  nature  of  this  work 
is  nowhere  indicated.  In  the  Salic  law, 
however,  a  whole  series  of  occupations  are 
mentioned  wherein  the  slaves  make  them- 
selves useful.  Slaves  are  keepers  of  vine- 
yards, they  are  millers,  shepherds,  hunters,  as 
well  as  smiths,  carpenters,  grooms,  and 
house-servants  of  the  lord.  It  is  the  ordi- 
nary servant's  and  tenant's  labor  that  they 


44        SLAVERY  IN  GERMANIC  SOCIETY 

performed,  though  some  of  them  must  have 
had  better  if  more  responsible  situations  than 
others,  e.g.,  the  goldsmiths,  waiters,  and 
overseers  in  cellar  and  kitchen.'  In  northern 
law  only  the  name  exists  to  characterize 
this  kind  of  labor  (verk),  while  another  kind 
seems  to  have  been  reserved  for  the  benefit 
of  the  slave  (orka).  The  laws  give  no  evi- 
dence of  what  the  orka  was  or  how  it  cor- 
responded with  the  work  due  to  the  master. 
To  judge  from  a  sentence  in  Norse  law 
{Gph,  c.  57),  the  orka  was  given  the  slave 
with  a  view  to  provide  for  the  bringing  up 
of  his  children,  which  perhaps  was  the 
original  meaning  of  the  slave's  peculium. 
Even  in  the  modern  Norwegian  language 
orke  means  heavy,  exhausting  labor.^  On 
the  Continent  the  Roman  peculium  must 
have  found  its  imitation  among  the  Germans. 
The  German  slave  too  was  settled  on  land 
(see  Tacitus,  although  here  liti  may  be 
meant  rather  than  slaves),  not  in  the  sense 

•  Grimm,  R.A.,  pp.  350-58. 

*  Cf.  Leg.  Alamann.,  tit.  xxii;  Lex  Bajtiw.,  tit.  i.  c.  13  (14, 
ed.  Walter). 


REDUCTION  45 

of  the  Roman  mancipiiim  who  followed  the 
land,  but  had  more  a  lifelong  tenure.  As  far 
as  I  have  been  able  to  discover,  the  laws 
never  mention  this  matter;  but  certain  state- 
ments about  the  slave's  ability  to  pay  for 
himself  (to  which  I  shall  refer  later)  seem 
necessarily  to  point  to  this  solution  of  this 
much- vexed  question.  To  settle  slaves  on 
land  was  the  easiest  way  of  maintaining  a 
large  stock  of  them,  or  rather  of  making  them 
maintain  themselves.  Besides,  without  some 
mode  of  earning  how  could  the  slave  ever 
have  come  into  the  position  of  buying  himself 
free?  We  know  that  the  church  from  the 
beginning  settled  slaves  on  her  land:  nay, 
that  slaves  and  serfs  came  to  have  so  much 
to  dispose  of  that  they  could  build  and 
endow  churches  and  chapels  of  their  own. 
But  how  all  this  was  managed,  and  how  much 
the  slave  could  with  some  security  call  his 
own,  will  perhaps  forever  remain  an  un- 
explored mystery. 

In  case  of  large  estates  the  slave  had  to 
pay  certain  dues  to  his  master  of  some  portion 
or  of  the  whole  of  the  land  which  he  was 


46        SLAVERY  IN  GERMANIC  SOCIETY 

tilling.'  Norse  law  gives  no  hint  of  what 
these  dues  were;  it  is  not  even  possible  to 
make  out  from  the  laws  whether  such  tenure 
by  slaves  was  general  or  not.  In  Sweden, 
however,  such  tenure  seems  to  have  been 
customary;  in  Denmark  it  appears  more 
than  likely  to  have  been  so;  and  we  may 
thus  be  permitted  to  consider  it  a  common 
trait  of  North  Germanic  economic  life.^ 

'  Waitz,  Vol.  I,  p.  226:  "Knechte  drei  tage  der  woche  fiir 
den  herm,"  etc.;  Grimm,  R.A.,  pp.  358-96;  Thevenin, 
Cfiarte  74. 

*  Amira,  Vol.  I,  p.  270,  n.  10;  p.  523,  n.  5. 


CHAPTER  III 

RESTITUTION;     THE    UPWARD    COURSE; 
AMELIORATION  OF  SLAVERY 

The  rotary  movement  of  civilization, 
wherein  by  degrees  the  lower  layers  of  society 
slowly  work  their  way  to  the  surface,  and 
vice  versa,  brings  change  also  into  the  state 
of  the  slave.  At  first  this  change  is  hardly 
to  be  counted  as  an  improvement  in  the 
actual  condition  of  slaves;  but  inasmuch 
as  it  gave  them  a  different  legal  status,  it  did 
in  time  lead  to  a  real  amelioration.  The 
effects  of  this  slow  but  important  movement 
are,  of  course,  shown  in  the  last  stage  of  the 
steep  ascent  where  the  slave  is  finally  deliv- 
ered from  his  bondage.  But  this  final  result 
(except  in  extraordinary  cases)  is  as  yet  far  off. 

On  the  Continent  political  revolutions 
were  the  cause  of  much  change.  The  un- 
settled condition  of  all  things  during  and 
directly  after  the  conquest  opened  ways 
for  the  slave  to  improve  his  situation.    An 

47 


48        SLAVERY  IN  GERMANIC  SOCIETY 

upheaval  of  that  kind  is  likely  to  be  felt  even 
down  in  the  lowest  layer  of  society;  for 
during  such  a  time  old  stipulations  can 
be  disregarded  and  new  ones  made  without 
much  fear  of  punishment  by  the  legal 
authorities.  At  the  arrival  of  the  Barbarians 
those  who  had  least  to  expect  from  their  pres- 
ent lords  were  the  ones  who  had  least  to  fear 
from  the  newcomers,  their  state  being 
sufficiently  miserable  as  it  was.  They  too 
were  the  ones  who  most  easily  submitted 
to  the  new  rule.  In  the  clash  of  political 
and  national  differences,  the  slaves  had  a 
momentary  chance  to  revolve  into  another 
sphere.  Thousands  of  fugitives  probably 
joined  the  conquerors  and  won  freedom 
and  position  in  battle.  That  they  did  not 
all  do  so  must  have  been  due  to  German' 
rather  than  to  Roman  antipathy.  On  the 
other  hand,  while  they  who  had  been  below 
rose,  they  who  had  hitherto  had  the  com- 
mand  sank.     During   the   centuries   which 

'  Those  that  were  of  German  origin  and  had  recently  been 
captured  might  count  upon  a  welcome;  whereas  others,  whose 
loyalty  was  of  a  more  doubtful  character,  would  receive  less  of 
a  welcome. 


RESTITUTION  49 

followed  the  Germanic  conquests  Roman  pro- 
vincials of  noble  birth  were  reduced  to  serv- 
ants and  slaves,'  while  their  former  inferiors 
were  entrusted  with  position  and  power. 

This  movement,  which  was  permanent  on 
the  Continent,  had  no  parallel  in  the  Middle 
Ages  in  the  Germanic  North.  Of  the  con- 
dition of  the  slave  in  England  before  and 
after  the  conquest  by  the  Angles  and  Saxons, 
we  know  next  to  nothing.  In  the  Scandi- 
navian peninsula  and  Denmark  the  migra- 
tion and  conquest,  if  such  there  was,  must 
have  taken  place  so  many  centuries  before 
that  everything  had  become  settled  and  the 
past  obliterated.  That  the  slaves  when 
mentioned  are  often  characterized  as  dark- 
haired,  small,  and  homely^  is  perhaps  no  mere 
expression  of  contempt,  but  a  national  trait, 
since  they  must  have  been  of  either  Finnish^ 

■  Gregory  of  Tours,  iii.  15. 

'  Svartr  (Swart)  as  a  slave's  name  is  mentioned  at  least 
twice;  Busti  (Bristle)  is  the  name  of  another;  Finn  the  Little, 
"the  smallest  and  swiftest  of  foot,"  etc. 

3  Finnish  from  the  original  or  neighboring  population, 
Celtic  from  the  coast  of  Ireland  or  France  where  the  Vikings 
raided. 


50        SLAVERY  IN  GERMANIC  SOCIETY 

or  Celtic  origin.  They  are  sometimes  spoken 
of  as  enjoying  confidence  because  of  clever- 
ness, readiness,  swiftness  of  movement;'  and 
this  might  fit  either  race. 

The  general  condition  of  the  slave  in  the 
North  has  already  been  indicated,  at  least 
as  far  as  the  laws  define.  To  suppose  that 
the  letter  of  the  law  was  in  every  case  an 
image  of  life  would  perhaps  be  profoundly 
unjust  to  humanity.^  Bad  as  it  must  have 
been,  there  were  probably  many  and  promi- 
nent exceptions  in  actual  life  to  the  harsh- 
ness of  the  laws.  Otherwise  the  two  races 
— that  of  the  master  and  that  of  the  slave — 
must  have  lived  in  a  contest  for  life  or  death 
which  would  end  in  the  extermination  of  at 

^  Egils  Saga,  c.  83:  "MatSr  sa  var  med  Jjorsteini  er  Iri 
het  hverjum  manni  f6thvatari  [swift  of  foot]  ok  allra  manna 
skygnastr  [sharpsighted]." 

*  It  (the  law)  presents  in  many  instances  a  blending  of  old 
and  new;  the  past  preserved  from  piety  and  showing  the 
utmost  rigor  of  custom,  the  present  suggesting  later  more 
expansive  views.  Sometimes  and  more  generally  the  new 
predominates,  sometimes  the  old;  while  at  times  the  two  are 
so  closely  interwoven  that  though  we  know  the  law  is  not  and 
seldom  can  be  a  homogeneous  structure,  always  containing 
traces  of  the  past,  nevertheless  there  is  little  or  nothing  left 
by  which  to  distinguish  what  is  old  and  what  is  new. 


RESTITUTION  51 

least  one  of  them.  Tacitus  {Germania,  c.  25) 
in  his  famous  passage,  speaking  of  the 
lenience  of  the  ancient  Germans  in  dealing 
with  their  slaves,  says  that  they  treated  them 
neither  to  chain  nor  to  forced  labor  and  killed 
them  rather  in  a  fit  of  anger'  than  from 
inclination  toward  cruelty.  Tacitus  has  here 
with  profound  insight  given  the  character 
of  the  Barbarian  as  compared  with  that  of 
the  Roman.  Cruelty  and  indifference  to 
suffering  are  even  today  a  characteristic  of 
southern  nations.  It  is  certain  that  on  the 
Continent  the  Germans  were  considered 
liberators  rather  than  oppressors  by  the 
tormented  lower  and  lowest  classes.^  The 
disposition  of  the  German  (Scandinavian  and 
all)  toward  his  slave  was — at  least  under 
ordinary  circumstances — one  of  fair  apprecia- 
tion, if  he  proved  himself  a  valuable  servant. 

'  Cf.  Egils  Saga,  c.  40:  "  l>orgerdr  Brak  was  the  name  of  a 
female  slave  of  Skallagrim  .  .  .  ."  whom  Skallagrim  kills. 
Egil  again  kills  the  dearest  of  Skallagrim's  workmen  in 
vengeance  for  her  death.  Both  deeds  are  done  in  a  fit  of  un- 
controllable wrath,  or  rather  rage. 

^  Perhaps  mainly  because  they  were  newcomers  who  did  not 
regard  slavery  as  an  economic  institution  which  must  be  kept 
going  at  any  cost. 


52        SLAVERY  IN  GERMANIC  SOCIETY 

The  slave  was  treated  well;  if  he  impressed 
his  master  favorably,  he  was  even  recog- 
nized as  being  bright,  capable,  useful.'  And 
yet  the  contempt  for  the  life  of  a  defenseless 
thing  frequently  got  the  better  of  the  good- 
humored  warrior,  and  this  defenselessness 
remained,  no  doubt,  in  law  and  in  life  alike 
the  desired  result  of  the  judicial  position  of 
the  slave  and  was  his  main  and  greatest 
misfortune.  It  may  be  that  private  arbi- 
trariness and  violence  when  they  occurred 
were  but  repetitions  of  worse  earlier  con- 
ditions, which  had  passed  away  except  among 
certain  high-handed  aristocrats.  It  is  pos- 
sible, too,  that  in  other  circles  of  more  exalted 
power  and  perhaps  more  exalted  views  this 
wilfulness  yielded  at  times  to  generous  mo- 
tives and  offered  the  slave  an  unrivaled  oppor- 
tunity for  a  better  station  in  life.  Certain  it 
is  that,  apart  from  Christianity,  nothing  con- 
tributed so  powerfully  to  a  more  humane  view 
of  the  position  of  the  slave  in  ancient  Ger- 

'  Laxdaela  Saga,  c.  ii :  "  J?ordr  owned  a  thrall  who  was 
called  Asgautr.  He  was  prominent  in  regard  to  qualities 
and  able  with  his  hands  [?],  and  although  he  was  called  thrall, 
few  might  be  his  equals  though  they  were  called  free." 


RESTITUTION  53 

manic  society  as  the  establishment  of  king- 
ship. The  main,  and  often  the  only,  chance 
for  the  slave  lay  in  his  connection'  with  the 
supreme  officer  of  the  community,  the  one 
who  alone  could  claim  exalted  power  as  his 
birthright.  This  was  a  chance  of  peculiarly 
undefined  and  personal  character,  but  was 
present  and  active  with  similar  results  every- 
where. The  king,  possessor  of  the  highest, 
most  untrammeled  power,  was  the  natural 
protector  of  every  abused  individual  within 
his  realm :  this  he  was  hound  to  be  in  order  to 
give  his  position  the  superiority  and  moral 
force  which  it  needed  among  wilful  and  self- 
seeking  family  chieftains.  To  his  mund, 
at  least  in  its  final  development,  anybody, 
free  or  thrall,  might  appeal  (though  at  first, 
of  course,  it  apphed  only  to  people  of  free 
birth).  Even  if  the  king's  power  could  not 
and  would  not  break  the  bondage  of  the 

'  Ynglinga  Saga  {Heimskringla),  c.  30:  "Egil  ....  was 
king  in  Sweden  after  his  father,  ....  he  had  a  thrall  hight 
Tunni  who  had  been  with  Aun  the  Old  and  was  his  treasurer. 
But  now  when  Egil  became  king,  he  set  Tunni  amid  the  other 
thralls;  and  this  he  took  exceedingly  ill,  and  ran  away,  and 
many  other  thralls  with  him"  (Morris'  tr.). 


54        SLAVERY  IN  GERMANIC  SOCIETY 

slave-born,  or  interfere  with  the  jurisdiction 
of  the  master,  the  king  could  (under  circum- 
stances) recommend  a  milder  treatment 
and  give  an  example  to  that  effect  himself. 
There  are  few  instances  of  the  king  having 
put  slaves  to  death  except  for  treachery 
against  their  own  masters,^  which  was  looked 
upon  as  unpardonable. 

As  an  owner  of  great  property  and  holder 
of  supreme  rights  over  men's  fortunes  and 
lives,  the  king  himself  had  many  slaves 
come  to  him  as  gifts  or  booty  or  because 
of  offense,  stocking  his  farms  as  a  necessary 
inventory.  All  such  slaves,  because  of  their 
owner's  power  and  wealth,  enjoyed  better 
circumstances  and  were  of  higher  value  than 
those  of  others.  This  condition  may  not 
have  existed  completely  until  the  king's 
rights  became  definitely  developed,  largely 
through  the  example  set  by  the  church; 
but  the  elements  of  it  were  inherent  even 
in  the  idea  of  kingship.  The  Frankish  puer 
regis  or  ministerialist  the  king's  slave  as 
compared  with  the  slaves  of  others,  was  a 

^  Saga  Olafs  Trygvasonar  (Heimskringla),  c.  55. 


RESTITUTION  55 

rather  privileged  person,  protected  by  law, 
equaling  the  freeman'  in  regard  to  smaller 
injuries,  in  regard  to  the  greater  being  on  a 
level  with  the  freedman  or  the  lUus.^  The 
other  slaves,  servi  casati,  mancipia,  fiscalini 
of  the  royal  domain — which,  at  least  as  far 
as  the  Prankish  empire  was  concerned, 
represented  the  greatest  complex  of  tilled 
and  untilled  land  and  the  largest  mass  of 
unfree  labor  of  the  period — these,  even  if  on  a 
lower  social  plane,  enjoyed  the  same  im- 
proved conditions.  They  were  naturally 
less  driven  for  the  sake  of  profit  than  were 
those  in  the  ordinary  landowner's  possession. 
The  royal  domain  was  too  vast  to  be  man- 
aged with  close  economy.  Charles  the  Great, 
indeed,  made  an  elaborate  attempt  to  estab- 
lish a  system  in  the  output  of  produce  so 
that  nothing  might  go  to  waste,  but  the  kings 
before  or  after  him  took  no  pains  thus  to 
supervise  in  detail,  and  free  and  unfree  alike 
grew  well-to-do  on  the  king's  plenty. 

Further,  the  king  could  free  those  who, 
because  of  offense,  had  become  enslaved  and 

'  Lex  Rib.,  lo,  2.  ^  Lex  Sal.,  c.  i.  i. 


56        SLAVERY  IN  GERMANIC  SOCIETY 

needed  a  patron  to  redeem  them;  although 
it  is  doubtful  whether  he  ever  found  it  wise  to 
tamper  with  the  working  of  the  law,  even  if  it 
were  an  act  of  mercy.  Finally,  by  the  very 
reason  of  his  position,  the  king  could  grant  to 
his  slaves  offices  which  even  freemen  might 
feel  honored  in  accepting,  although  they  did 
not  always  feel  honored  in  obeying/  Being 
a  lord  superior,  a  more  independent,  better 
equipped,  and  more  highly  regarded  official 
than  the  chieftain,  the  king  could  invest  his 
humble  slave  with  some  of  his  own  luster,  and 
could  confer  upon  that  servant  dignities  not 
only  of  the  royal  household,  but  of  the  admin- 
istration of  the  realm  which  would  make  the 
despised  slave  not  only  the  equal,  but  the 
superior  of  the  free  followers.  The  Merovin- 
gian sacebaro,  the  royal  financial  agent,^ 
and  even  the  graf  were  no  doubt  often  unf ree, 

'  Cf.  the  incident  in  Saga  Olafs  hins  Helga,  c.  122,  where 
Erling  says:  "But  this  shall  I  deem  a  troublous  matter,  to 
lout  before  Seal-Thorir,  who  is  thrall-born  through  all  his 
kin,  although  he  be  now  thy  steward,  or  to  bow  to  others  such 
as  are  his  peers  or  kindred,  although  thou  lay  honor  on  them"; 
likewise  c.  237,  where  the  king  says:  ".  .  .  .  whereas  I  have 
raised  thee  up  to  might  from  a  little  man."  Cf.  c.  148 
(Morris'  tr.). 

^  Ze.11;  Sal,  tit.  54. 


RESTITUTION  57 

invested  with  considerable  power.  In  these 
cases,  however,  it  seems  likely  that  Roman 
imperial  administration  was  influential  as  a 
model. 

Yet,  while  this  liberahty  on  the  part  of  the 
king  had  the  aspect  of  generosity  as  com- 
pared with  the  actions  of  most  other  lords, 
we  may  readily  suppose  that  the  motive  was 
not  generosity  but  self-interest,  inasmuch 
as  a  prospect  of  elevation  and  reward  of  this 
kind  would  spur  the  servant  to  far  greater 
effort.  Those  positions  which  later  became 
sources  of  the  most  extensive  power  to  the 
magnates  of  the  realm,  e.g.,  majordomus, 
mareskalkus,  marshal,  etc.,  were  at  first 
identified  only  with  the  king's  slaves,  but 
by  acts  of  grace  and  royal  backing  they 
became  by  degrees  places  of  importance.^ 
These  servants  being  at  first  absolutely  at 
the  king's  bidding,  he  secured  implicit  obedi- 
ence by  choosing  and  supporting  them  and 
more  real  power  than  if  he  had  altogether 
employed  freeborn  men.     There  is  no  doubt 

'  Gregory  of  Tours,  iv.  46  (Andarchius) ;  iv.  51  (Charegisil) ; 
V.  48  (Leudast). 


58        SLAVERY  IN  GERMANIC  SOCIETY 

that  the  use  of  slaves  or  quondam  slaves 
as  comites,  officers  of  the  court,  and  royal 
commissioners  was  one  of  the  causes — if  only 
a  minor  one — of  the  rapid  growth  of  Mero- 
vingian power  into  one  of  almost  despotic 
nature. 

Moreover,  whatever  indirect  political  re- 
sults this  elevation  of  the  slave  may  have 
brought  about,  it  caused  also  something  of  a 
social  revolution  of  ideas.  Because  of  the 
king's  authority,  it  was  necessary  to  hold  the 
slave  who  represented  him  in  higher  esteem 
than  would  otherwise  have  been  possible. 
Even  legally  the  king's  schalk  was  the  equal 
of  the  free.'  That  female  slaves  by  the  same 
arbitrariness  of  power  might  be  elevated  to  a 
position  of  queen  was  quite  in  keeping  with 
the  same  idea.  It  is  supposed,  however,  that 
in  most  cases  this  slave  was  originally  of  free 
birth,  reduced  to  slavery  by  misfortune  or  for 
other  reasons,  the  king's  amhdtt,  as  so  often 
occurs  in  the  tales  of  the  sagas.^    The  child 

'  Waitz,Vol.I,p.  228. 

=  Saga  Olafs  kins  Helga,  c.  131 :  "There  was  a  woman  hight 
Alfhild,  who  was  called  king's-bondmaid,  though  she  was  come 
of  good  stock";  Saga  Haralds  hins  Hdrf.,  c.  40:  ".  .  .  .  Good 


RESTITUTION  59 

of  such  a  union  might — if  he  were  recognized 
by  his  father — ^become  the  heir  of  the  king- 
dom, so  that  through  the  backdoor  of  illegiti- 
mate connection  the  slave  might  come  into 
even  greater  honor  and  dignity/  That  this 
movement,  as  far  as  the  general  slave  was 
concerned,  was  nothing  but  a  brilliant  excep- 
tion; that  the  slave,  when  still  a  slave, 
remained  in  every  case  at  the  mercy  of  his 
master  who  could  in  an  instant  throw  the 
creature  of  his  power  down  as  far  as  he  had 
raised  him,  shows  that  this  means  of  ameho- 
rating  the  state  of  the  slave  was  as  fluctuating 
and  uncertain  as  was  the  reduction  to  slavery 
of  the  freeborn.  It  is  reasonable  but  not 
always  warranted  by  the  sources  to  suppose 
that  the  act  of  liberation  sometimes  preceded 
elevation  into  a  higher  sphere.  When  this 
did   not    occur   beforehand,   however,   it  is 

kin    she    had She    was    called    king 's-bond woman; 

for  in  those  days  there  were  many  of  good  blood  both  men  and 
women  that  owed  homage  to  the  king"  (Morris'  tr.);  Gregory 
of  Tours,  iv.  26;  v.  17  (Queen  Austrichilde),  n.  i;  c.  v.  20,  49. 

'  Gregory  of  Tours,  iv.  25;  v.  20:  ".  .  .  .  ignorans,  quod, 
praetermissis  nunc  generibus  feminarum,  regis  vocitantur 
liberi,  qui  de  regibus  fuerant  procreati"  (ed.  Omont). 


6o        SLAVERY  IN  GERMANIC  SOCIETY 

possible  that  the  slave's  unfortunate  position 
aroused  more  interest  because  of  his  conspic- 
uousness  in  his  high  ofhce.  But  on  the  other 
hand,  his  behavior  and  arrogance  as  repre- 
sentative 'of  royal  prerogative  must  just  as 
often  have  made  him  more  utterly  despised 
and  the  royal  power  appear  more  misguided 
in  its  choice  than  ever.  And  inasmuch  as  the 
royal  power  in  general  grew  and  the  power 
of  the  people  sank  there  was  some  cause  for 
disquietude. 

Another  stronghold  of  hope  for  the  slave 
was  the  power  of  the  Roman  Catholic  church. 
What  the  king  represented  within  the 
political  sphere  the  bishop  represented  within 
the  moral.  There  is  no  doubt  that,  but  for 
the  constant  good  offices  of  the  church 
through  her  ministers,  the  improvement  in 
the  condition  of  the  slave  would  have 
been  of  far  slower  growth.^     The  bishop,  of 

'  The  church  pronounced  excommunication  and  two  years' 
penance  on  the  lord  who  killed  his  slave  without  the  knowledge 
of  the  "judge":  Concil.  Agath.,a.  506.  c.  62;  Hefele,  Co«a7/e»- 
gesch.,  II,  sec.  222;  Coucil.  Epaon.,  a.  517,  c.  34:  "Si  quis 
sen'um  proprium  sine  conscientia  iudicis  occiderit,  excom- 
municationem  biennii  effusionem  sanguinis  expiavit ";  Hefele, 
Concieliengesch.,  Vol.  II,  p.  685;  Vol.  IV,  p.  371;  Concil. 
WormaL,  a.  868,  c.  38. 


RESTITUTION  6i 

course,  could,  as  little  as  the  king,  interfere 
with  actual  ownership  or  abolish  slavery; 
but  he  tried  to  exercise  a  religious  as  well  as  a 
practical  pressure  upon  the  slave-holder. 
On  the  one  side,  mild  treatment  of  the  slave 
was  always  spoken  of  as  one  of  the  important 
evidences  of  a  Christian  spirit;  on  the  other 
side,  the  churches  and  monasteries  were 
recognized  places  of  refuge  for  the  fugitive 
or  abused  slave,  the  priest  or  abbot  before 
giving  the  slave  over  exacting  an  oath  or 
promise  from  the  slave-owner  not  to  do  the 
refugee  further  harm.^  In  course  of  time  this 
right  of  asylum  was  extended  to  the  houses 
of  bishops  and  other  clerics,  in  England  to 
the  king's  court  and  the  courts  of  temporal 
lords — nay,  among  the  Lombards  the  house 
of  an  ordinary  freeman  could  give  protection 
to  the  fugitive  slave.^  It  was  likewise  due 
to  the  influence  of  the  church  that  the 
king's  mund  acquired  the  all-encompassing 

'  Gregory  of  Tours,  v.  3.  Lex  Sal.,  c.  iv.  15;  cf.  Concil. 
/Iz^rc/.,  a.  511,  c.  3;  Co?icil.Epaoii.,  a.  si7,c.  S9-  The  church- 
man can  help  the  slave  by  paying  the  price  to  the  lord  or 
helping  him  to  further  flight  at  the  same  cost:  Leg.  Alamann., 
3,  2;   Leg.  Lang.,  Roth,  c.  372. 

nVilda,  p.  543- 


62        SLAVERY  IN  GERMANIC  SOCIETY 

protective  power  which  it  very  soon  came  to 
have,  inasmuch  as  to  the  church  the  king's 
position  alone  seemed  stable  enough  to  offer 
successful  resistance  to  the  violence  and 
contempt  for  human  life  which  certainly 
characterized  Germanic  society.^  Besides, 
the  church  hberally  rewarded  any  such 
service  done  her  representatives,  and  in  this 
way  established  a  higher  standard  of  treat- 
ment.^ The  church  also  favored  liberation 
of  the  slaves  to  a  degree  which  far  exceeded 
that  of  any  private  or  pubHc  slave-owner.^ 
On  the  other  hand,  it  is  true  that  the  church 
did  not  abolish  slavery  within  her  own  pre- 
cincts; she  seemed  far  more  eager  to  have 
slaves  given  her  than  to  give  them  away  her- 
self, and  she  must  thus  be  declared  guilty  of 
half -measures.''  Yet  in  this  respect,  as  in 
many  others,  the  church  had  to  conform  to 

■  Wilda,  p.  539.  ^  Gregory  of  Tours,  iii.  15. 

3  Numerous  instances  in  the  Formulae  and  other  sources 
{Life  of  St.  Eligius,  c.  10). 

*  Loning,  Gesch.  d.  dentschen  Kirchenrechts ,  Vol.  II,  pp.  227- 
29;  Lex  Bajuw.  (ed.  Walter),  tit.  i.  c.  5:  "Si  quis  servum 
Ecclesiae  sine  mortale  culpa  occiderit  ....  duos  similis 
restituat." 


RESTITUTION  63 

the  economic  condition  of  the  time,  and  in 
her  struggle  for  material  independence,  which 
alone  could  secure  success  to  her  in  her  ideal 
pursuits  (since  might  alone  can  protect 
right),  she  needed  cheap  labor,  and  took  this 
from  whatever  source  it  was  offered.  In 
holding  slaves  as  cultivators  of  her  enormous 
estates  the  church  made  servitude  as  com- 
fortable an  existence  as  it  could  ever  become. 
The  slave  of  the  church  was  more  esteemed  by 
the  law  than  anyone's  except  the  king's,  and 
the  churchmen  were  the  first  who,  in  judg- 
ing a  case,  made  a  distinction  between  in- 
tentional and  unintentional  acts,  thus  by 
degrees  opening  the  way  to  a  more  intelli- 
gent jurisprudence,  even  for  the  slave. ^ 

The  most  difficult  point  still  remains  to 
be  dealt  with,  namely,  when  and  how' 
amelioration  took  place  in  the  plain  everyday 
relation  between  the  ordinary  slave  and 
his  master.  Where  there  were  no  extraordi- 
nary forces  at  work,  the  change  naturally  was 
almost  imperceptible,  accomplishing  only 
gradual   and   apparently   very   insignificant 

'  VVilda,  p.  547. 


64        SLAVERY  IN  GERMANIC  SOCIETY 

results.  But  this  is  the  usual  way  of  life 
and  safe  to  judge  by;  while,  being  more 
difficult  to  follow,  it  is  more  important  to  try 
to  explain.  In  regard  to  the  relation  between 
master  and  slave  it  has  already  been  pointed 
out  that  the  letter  of  the  law  and  the  actual 
condition  might  not  correspond.  Grimm,  in 
his  Reclitsalterthumer  (4th  ed.),  eulogizes 
the  patriarchal  life  into  which  the  slave  as 
a  mute  and  always  obedient  servant  fitted 
so  well.  In  his  picture  the  slave  figures 
as  the  natural  completion  of  a  perfectly 
harmonious  household.  It  is  very  likely 
indeed  that  once  upon  a  time  such  harmoni- 
ous conditions  existed.^  Occasionally,  how- 
ever, these  conditions  continued  to  exist, 
wherein  the  slave,  instead  of  being  abused, 
was  cared  for  and  protected  as  a  legitimate 
member  of  the  family;  and  it  is  probable 
that  under  these  circumstances  he  wished 

■  But  in  the  East  proper,  where  life  is  easier  and  human 
beings  can  be  maintained  at  little  cost,  rather  than  in  the  West, 
where  all  things  come  harder,  because  the  struggle  for  main- 
tenance of  life  is  more  severe;  a  circumstance  which  must 
count  a  good  deal  toward  influencing  the  temper  of  the  ruling 
class. 


RESTITUTION  65 

for  nothing  better.  But  in  cases  where  this 
harmony  was  broken  or  did  not  exist,  the 
whole  weight  of  the  situation  descended 
upon  the  slave  and  made  him  a  victim  of 
exploitation  and  tyranny.  Such  a  con- 
dition cannot  last,  but  must  sooner  or  later 
see  a  change.  It  must  have  been  the  captive, 
the  freeman  reduced  to  slavery,  without  any 
deferential  relation  to  the  lord,  who  was  the 
first  one  to  feel  the  degradation  and  strive 
with  all  his  might  to  get  out  of  it,  thus  setting 
an  example  to  those  born  in  the  condition. 
The  slave  in  this  form  revealed  himself 
as  a  man  reduced  to  a  thing,  yet  without 
any  willingness  to  acquiesce  in  the  situation, 
his  will  as  a  matter  of  course  always  at 
variance  with  his  master's.  Thus  it  might 
be  said  that  contemporaneously  with  the 
establishment  of  slavery  begins  the  desire 
for  the  destruction  of  it;  the  individual 
suffering  makes  possible  to  others  the  realiza- 
tion of  suffering  in  general.  Of  course, 
the  master  succeeded  in  breaking  the  will 
of  the  slave,  and  if  no  fortunate  circumstances 
intervened,  the  former  freeman  was  reduced 


66        SLAVERY  IN  GERMANIC  SOCIETY 

to  such  non-identity  as  the  law  prescribed. 
But  therewith  the  incident  was  not  closed; 
the  same  thing  happened  over  again,  the  same 
revolt,  the  same  breaking  into  bondage ;  and 
however  useless  and  painful  to  the  individual, 
with  the  slave  in  general  it  served  to  keep 
the  wound  open,  and  keep  alive  the  con- 
sciousness of  his  situation.  History  has  very 
few  notices  of  any  concerted  movement  on 
the  part  of  the  slaves  to  secure  their  release. 
They  ran  away,  they  infested  the  woods 
and  the  roads  as  highwaymen,^  for  in  some 
way  they  had  to  secure  a  living;  spontaneous 
outbursts,  these,  of  the  longing  for  freedom 
which  only  succeeded  in  making  antagonism 
on  the  part  of  the  free  keener  than  ever. 
Bands  of  slaves  or  even  small  armies  of 
them  sometimes  declared  war  upon  society 
and  even  gave  battle  to  the  military  force. 
Sometimes  they  succeeded,  thus  throwing 
parts  of  the  country  into  utter  confusion  and 
necessitating  martial  law.     But   sooner  or 

'  Ynglinga  Saga,  c.  30  (the  story  of  Tunni):  "Thereafter 
there  flocked  much  folk  of  the  runagates  and  they  lay  abroad 
in  the  wild-wood,"  etc. 


RESTITUTION  67 

later  the  fierce  glow  of  rebellion  wasted  itself, 
the  marauders  were  pursued  and  beaten,  a 
terrible  example  was  set  those  who  were 
still  uncertain,  and  slavery  existed  as  before. 
Thus  there  can  be  no  doubt  about  the  slave's 
will  to  be  free,  even  if  he  was  accustomed 
to  thraldom,  a  wish  most  unwelcome  to  his 
owner  and  peremptorily  punished  as  an 
intention  leading  to  destruction  of  property 
no  less  than  to  neglect  of  inviolable  duty. 
This  was  perfectly  natural.  If,  as  Mommsen 
suggests,  the  slave  was  originally  so  abso- 
lutely without  rights  that  he  had  the  master 
to  thank  even  for  his  life,'  his  relation  was 
not  only  one  of  absolute  subservience  but  of 
sacred  obligation.  There  was  a  religious 
significance  in  his  being  under  the  lord's 
command  which  made  disobedience  and 
revolt  doubly  odious.  He  broke  bonds  which 
sprang  from  gratitude,  gratitude  for  the 
greatest  gift  of  all,  the  gift  of  life,  not  from 
the  sense  of  impotence  only.    As  a  natural 

'  As  to  what  death  a  prisoner  taken  in  battle  might  suffer, 
see  Njdlssaga,  c.  156  (the  death  of  Erodir  in  Ireland);  Saga 
Haralds  hin  Hdrf.,  c.  31. 


68        SLAVERY  IN  GERMANIC  SOCIETY 

result,  however,  often  the  slave  broke  away; 
if  he  did  not  perish  in  the  attempt  or  as  a 
result  of  it,  he  was  always  brought  back  to  his 
former,  perhaps  to  a  worse,  state.  He  was 
indeed  made  to  understand  that  the  lord  had 
rights  none  could  do  away  with.  Thus  under 
the  influence  of  fear  of  consequences,  the 
slave's  will  may  well  have  melted  down  to  a 
mere  wish,  which  almost  evaporated  alto- 
gether when  he  contemplated  the  futility 
of  any  attempt  of  his.  The  resulting  apathy 
or  desperation  may  have  effected  a  subtle 
change  in  the  disposition  of  even  the  meekest 
slave,  a  change  before  which  even  the  al- 
mighty lord  might  quail. 

The  old  fiction,  then,  that  the  slave  had 
no  will  aside  from  his  master's,  that  apart 
from  him  he  was  nobody,  exploded,  as  a 
fiction  should,  and  although  it  was  kept  up 
legally  at  least,'  people  ceased  to  believe 
in  it,  as  they  ceased  to  believe  in  the  ordeal. 
Even  among  the  Romans  society  knew  that 
the  slave,  whatever  his  juridical  position,  was 
in  reaUty  a  person  with  both  will  and  power 

'  See  the  curious  nature  of  many  titles  in  the  laws. 


RESTITUTION  69 

of  decision  capable  of  doing  injury  far 
beyond  his  limited  sphere  of  action.  In 
trusting  their  children  to  slave  educators, 
for  instance,  the  Romans  must  have  been 
aware  of  the  danger  of  having  characters 
formed  not  at  all  in  keeping  with  their  own 
conception  of  proper  living.  The  strength 
of  the  master  lay  in  his  power  to  crush  this 
will  of  the  slave ;  deny  it  or  ignore  it  he  could 
not.  When  the  slave  broke  the  bond  of 
obedience,  the  cowardice  for  which  he  was 
despised,  but  to  which  he  was  purposely 
brought  up,  made  him  afraid  of  doing  any- 
thing openly.  Thus  stealth,  murder,  night 
attacks,  were  his  chief  acts  of  self-assertion. 
In  such  cases,  when  the  slave  acted  on  his 
own  initiative  without  the  knowledge  or 
permission  of  the  lord,  showing  himself 
unmindful  of  command  and  punishment, 
the  question  of  responsibility  for  his  doings 
soon  became  acute.  Previously — if  it  be 
permitted  to  reconstruct  the  past  wholly  from 
suggestions  found  in  the  laws  (they  being 
to  such  large  extent  piecework  anyway),  sel- 
dom if  ever  from  any  direct  statement — the 


70        SLAVERY  IN  GERMANIC  SOCIETY 

lord  was  responsible  for  everything.  The 
slave  committed  a  misdeed  very  much  as  an 
animal  would,  a  stupid  blunder  as  it  were; 
and  the  lord  was  held  to  account,  as  if  he  had 
himseh  committed  it.  For  who  could  argue 
concerning  right  or  wrong  with  the  mis- 
chievous or  foolish  brute,  devoid  of  real 
intellect  as  of  sense  of  duty?  The  oldest 
of  the  Germanic  laws,  Lex  Salica,  again  and 
again  mentions  the  lord  as  having  to  pay 
the  damage  or  the  value,  as  well  as  for 
the  temporary  uselessness,'  of  the  injured  or 
destroyed  object.  This  shows  the  enormous 
importance  of  property,  even  in  a  primitive 
society.  The  lord  then  took  upon  himself 
to  discipline  the  ill-behaved  slave.  But  if  the 
question  of  outlay  could  better  be  met  in  a 
different  way,  money  and  kine  perhaps 
being  dearer  than  slaves,  the  owner  yielded 
the  slave  up  to  the  injured  party  as  thing  for 
thing,  as  slave  for  slave;  a  common  way  of 
paying  material  damage.    The  new  owner 

'  Much  in  the  same  way  as  interest  is  paid  on  money 
borrowed,  for  the  time  useless  to  the  owner  unless  such 
compensation  is  made — if  that  is  the  right  explanation  of 
dilatura. 


RESTITUTION  71 

then,  if  he  liked,  punished  the  slave.  For 
if  a  dog  or  other  beast  could  be  made  to 
understand  it  had  done  wrong  and  vexed  its 
master,  the  slave  could,  too;  though  he  was 
often  done  away  with  altogether,  if  the  lord 
could  better  afford  this  than  having  a  con- 
stant nuisance  around.  But  when  the  slave 
committed  a  deed  for  which  it  would  in  every 
way  be  disadvantageous  to  the  lord  to 
plead  responsible,  there  was  an  odd  change 
in  the  behavior  of  the  free.  Although  the 
lord  was  still,  in  the  eyes  of  the  law,  the  very 
source  of  existence  and  the  mainspring  of  his 
acts,  yet  the  slave  rose  in  general  opinion 
to  a  higher  level.  Or,  to  state  it  more  from 
the  standpoint  of  practice  than  of  philos- 
ophy, the  slave  sank  from  the  sometimes 
offensive,  but  generally  useful,  brute  to  the 
evil-intentioned,  dangerous  reptile  whose 
movements  were  always  to  be  watched  and 
whose  fangs  were  to  be  feared.  Under  such 
circumstances  it  was  natural  that  the  lord 
could  not  afford  to  be  looked  upon  as  the 
constant  source  and  origin  of  every  deed  of 
the  slave.     The  law,  as  before,  demanded 


72        SLAVERY  IN  GERMANIC  SOCIETY 

that  the  lord  pay  for  the  slave,'  he  having 
nothing  of  his  own;  and  the  extent  of  this 
responsibility  showed  itself  in  the  lord's 
having  to  pay  the  full  wergeld  as  well  as  all 
other  expenses  caused  by  any  action  of  the 
slave's.  But  henceforth  there  was  a  distinc- 
tion made  between  the  economic  and  the 
moral  liability.  The  two  views,  the  older 
and  the  newer,  appear  side  by  side  in  many 
laws,  as  if  no  definite  distinction  were  made 
and  both  had  currency;  as  very  likely  they 
had,  since  past  and  present  are  strangely 
blended,  no  revision  of  the  previous  laws 
being  thorough  nor  any  new  departure  abso- 
lute. The  lord  might  indeed  be  at  the 
bottom  of  the  evil  act,  to  ascertain  which 
involved  perhaps  a  tortuous  procedure  in 
the  courts;  but  it  became  a  question  of 
social  self-preservation  with  him  to  deny 
any  share  in  the  deed,  since  he  might 
not  wish  to  face  the  indignation  and  the 
revenge,  and  might  find  it  convenient  to 
refuse  rather  than  to  bear  the  guilt  imputed 
to  him.    Thus  the  fallacy  of  generations  in 

'  Lex  Fris.  (ed.  Walter),  i.  13,  14;  Lex  Sal.,  xi.  2,  5. 


RESTITUTION  73 

regard  to  the  moral  non-identity  of  the  slave 
collapsed  and  a  more  reasonable  basis  for  his 
existence  was  established.  Henceforth  the 
slave  was  looked  upon  as  capable  of  doing 
whatever  he  had  a  mind  to  and  from  a  per- 
sonal motive,^  the  nature  of  which  it  was 
the  freeman's  first  business  to  ascertain. 

There  was  something  pecuKarly  galling  to 
the  pride  of  the  free  in  an  offense  committed 
by  a  being  so  degraded,  so  dependent;  but 
when  it  concerned  life  more  precious  than 
his  own — the  threatening  and  murder  of 
freemen  or  the  slaying  of  his  own  master — 
it  became  unendurable.  Such  a  matter  was 
felt  to  be  of  lasting  importance.  As  the 
Njdlssaga  casually  remarks:  "Thralls  are 
men  of  more  mettle  than  of  yore ;  they  used 
to  fly  at  each  other  and  fight  and  no  one 
thought  much  of  that;  but  now  they  will  do 
naught  but  kill,"*  The  immediate  impulse 
on  the  part  of  the  free  was  at  such  times 

'  It  seems  as  if  this  lesson  must  have  been  learned  every- 
where and  rather  early;  but  nowhere  with  such  force  or  effect 
as  by  the  Germanic  nations  who  came  in  contact  with  the 
cultivated  Roman  slave. 

^C.  37  (Dasent's  tr.). 


74        SLAVERY  IN  GERMANIC  SOCIETY 

to  cut  down'  the  despicable  being,  and  very 
few  escaped  the  swift  doom.  But  if  the 
slave  did  get  away,  punishment  by  the  lord 
appeared  as  no  fit  return;  the  sense  of  out- 
rage and  thirst  for  revenge  were  too  strong 
to  be  satisfied  with  the  customary  compensa- 
tion and  called  for  a  more  definite  placing 
of  guilt  and  adequate  atonement.  Of  course 
the  slave  had  nothing  more  to  lose  than  his 
life;  but  this  was  to  be  taken  from  him  by 
those""  who  had  a  better  reason  for  doing  so 
and  a  greater  grievance  against  him  than  his 
owner,  who  avowedly  had  no  connection  with 
the  crime.^    Before  he  was  put  to  death,  how- 

'  In  the  Icelandic  sagas  the  murders  planned  by  freemen 
with  slaves  as  the  would-be  assassins  invariably  end  with  the 
slaughter  of  the  latter  before  they  have  had  time  to  do  much 
harm.  In  such  case  they  fall  victims  to  their  master's  wiles, 
who  promises  them  freedom  and  good  gifts  for  their  obedience 
{Eyrbyggja  Saga,  cc.  26,  43;  Egils  Saga,  c.  81). 

'  Wihtraed,  c.  23;  Hlotaere  b°  Eadric,  cc.  i,  3;  Ine^s  Laws, 
cc.  74  and  i.  See  also  Leg.  Lang.,  Luitpr.,  c.  21;  and  Roth., 
c.  142:   "Et  si  mortuus  fuerit,"  etc. 

3  On  the  basis  of  the  slave  being  nobody,  doing  nothing, 
the  lord  at  first  paid  the  wergeld  in  full  and  kept  the  slave; 
but  the  semi-recognition  of  the  culpability  of  the  slave  is 
already  expressed  in  the  famous  passage  of  Lex  Sal.,  tit.  35,  5, 
where  the  slave  is  traded  to  the  injured  party  in  payment  of 


RESTITUTION  75 

( 

ever,  the  slave  had  to  make  a  full  confession 
of  his  guilt,  and  since  nothing  but  stringent 
measures  could  compel  him  to  tell  the  truth 
he  was  promptly  put  to  torture.  This  was 
the  first  fearful  tribute  that  the  slave  paid 
on  the  road  to  the  establishment  of  his  own 
identity;  a  tribute  every  downtrodden  layer 
has  had  to  pay  before  it  reached  the  more 
even  balance  of  power. 

In  the  case  of  killing  his  master,  the  ques- 
tion arose:  Had  he  been  hired  to  do  so  by 
another,  or  had  he  done  it  out  of  his  own 

half  the  wergeld.  This  is  perhaps  the  most  direct  evidence  we 
possess  of  the  beginning  of  a  change.  But  even  so,  the  lord 
could  protest  and  throw  the  whole  blame  on  the  slave  (Var.). 
In  Leg.  Lang.,  Roth.,  c.  142,  the  lord  pays  half  or  all  of  the 
wergeld  according  to  whether  the  man  died  or  survived,  and 
besides  yields  the  slave,  the  latter  to  be  counted  for  half,  or 
only  a  portion — it  is  not  clear  which.  GJjL,  c.  163,  goes  even 
a  step  farther  in  demanding  that  the  master  either  give  up 
the  thrall  or  pay  the  wergeld.  Lex  Rib.,  cc.  17,  18,  22,  29, 
holds  the  same  attitude,  except  that  here  it  is  not  the  value  of 
the  freeman  but  a  certain  fractional  sum  which  suffices,  the 
so-called  sclavenwergeld,  which  introduces  on  behalf  of  the 
slave  something  like  what  had  been  long  ago  settled  in  regard 
to  the  litus;  a  legally  accepted  money-status  independent  of 
personal  valuation.     Amira,  Vol.  I,  p.  393:    "Wegen  todt- 

schlag  eines  freien Sonst  gilt  die  regel  das  losegeld 

diirfe  dem  gesetzlich.  werth  d.  unfreien  nicht  ubersteigen." 


76        SLAVERY  IN  GERMANIC  SOCIETY 

spite  ?  To  settle  this  the  slave  had  again  to 
be  questioned  by  the  nlost  efficient  means. 
Were  there  no  reason  for  supposing  the 
deed  instigated  by  another,  no  death  could 
be  too  swift  nor  any  questioning  too  painful 
to  settle  the  reasons  for  this  most  heinous 
of  all  crimes.  In  any  case  it  was  the  heirs 
of  the  deceased  who  conducted  the  trial.  So 
far  the  whole  proceeding  was  private,  public 
justice  being  resorted  to  only  when  the  lord 
had  refused  to  do  his  duty;  namely,  to  aid 
in  producing  the  slave  for  inquisition  or  pun- 
ishment. 

The  question  may  briefly  interest  us  here 
whether  whipping  as  a  means  of  producing 
evidence  was  a  native  institution  or,  as  some 
writers  have  it,  adopted  from  contact  with 
the  Romans.  As  far  as  we  know,  the  Ger- 
manic nations  never  employed  torture  for 
the  sake  of  torture,  at  least  upon  the  slave. 
The  natural  impulse  of  the  enraged  freeman 
was  far  more  to  kill  the  loathsome  mischief 
at  once,  destroy  him  as  one  destroys  vermin. 
But  the  rules  of  blood-feud  and  the  need  of 
finding  a  true  cause  against  someone,  so  that 


RESTITUTION  77 

life  should  not  be  spilled  for  nothing,  de- 
manded that  the  thrall,  when  he  had  done 
something,  be  forced  to  speak.  The  Ice- 
landic sagas  repeatedly  mention  freemen 
who,  having  caught  the  miscreant  slave,  had 
"a  true  tale  out  of  him."'  What  this  con- 
sisted of  is  nowhere  exactly  said;  but  the 
laws  speak  of  the  right  to  torture  (pina)  the 
slave  for  the  purpose  of  getting  the  "true 
tale"  out  of  him.^  The  race  which  knew 
so  many  and  terrible  ways  of  punishing 
equals  and  slaking  the  thirst  for  revenge  in 
a  lingering  death  for  the  victim  must  have 
known  how  to  make  an  obstinate  slave 
come  around.  It  is  unnecessary  to  imagine 
what  might  be  tried.  Very  likely  the  slave 
himself  saved  a  great  deal  of  trouble,  since 
cowardice  was  looked  upon  as  his  chief  char- 
acteristic; but  at  any  rate  the  use  of  the 
whip  was  nothing  new.  The  Germans  may 
or  may  not  have  profited  from  the  Romans 
in  learning  how  to  make  flogging  tell  on  a 

'  Eyrbyggja  Saga,  cc.  26,  43. 

^GJ)!.,  c.  262:    "Pina  hann  hvarke  viS  ellda  ne  viS  jarn 
ne  vi3  vatn." 


78        SLAVERY  IN  GERMANIC  SOCIETY 

slave;  their  knowing  how  to  flay  a  man 
ahve  by  puUing  off  the  skin  with  the  hair 
{decahatioY  or  thrash  him  till  the  skin  peeled 
off  does  not  seem  to  necessitate  their  learning. 
Torture  comes  easy  to  hardened,  pugnacious 
natures  who  themselves  scorn  pain  or  the 
weakness  of  showing  suffering. 

Torture,  however,  could  not  be  resorted 
to  indiscriminately.  There  were  instances 
where  the  slave  was  only  vaguely  suspected, 
as  it  were,  on  no  evidence  but  suspicion  itself. 
The  lord  disbelieved  the  charge;  he  went  so 
far  as  to  deny  it,  and  yet  he  allowed  the  pain- 
ful quest  to  take  place,  largely  because 
he  had  no  desire  to  run  the  risk  of  exposing 
himself  or  shielding  one  unworthy.  The 
torture  might  end  in  the  slave  becoming 
disabled,  or  even  in  his  death,  which  meant 
pecuniary  loss  to  the  lord.  This  must  have 
happened  a  number  of  times  before  Hfe 
thus  wasted  caused  any  decision  among  the 
masters  to  save  property,  inasmuch  as  it 

^Cnut's  Laws,  ii.  c.  30,  5  (ed.  Schmid);  GJjI.,  c.  259: 
".  .  .  .  berja  hud  af  honom  gorvalla  [altogether];  .... 
hydjanhann  fyrirfimt";  cf.  22. 


RESTITUTION  79 

would  not  be  the  poorest  of  slaves  who  came 
under  suspicion,  but  the  ablest.  The  lords 
finally  made  the  rule,  and  the  law  embodied 
it,  that  when  such  a  case  came  up,  the  injured 
party  in  return  for  the  privilege  of  making 
the  quest  should  deposit  at  least  the  equiva- 
lent of  the  slave,  before  torture,  as  a  security 
to  the  owner — this  not  as  any  boon  to  the 
slave,  but  as  a  consideration  to  the  lord.  For 
although  the  slave's  act  was  the  immediate 
object  of  the  investigation,  it  was  the  interest 
of  the  lord  which  was  ultimately  at  stake. 
As  Jastrow  expresses  it:  "If  the  plaintiff 
has  only  first  given  pledge  to  the  lord  for  the 
value,  there  is  no  restriction  to  his  power; 
he  may  torture  the  slave  as  much  as  he 
thinks  fit!'"  Torture,  however,  proved  so 
effective  in  bringing  about  discovery  of  the 
guilty  and  just  punishment  for  the  evildoer 
that  it  was  employed  for  matters  less  grave, 
for  theft,  e.g. ;  although  it  is  difficult  to  say 
which  was  held  more  precious,  life  or  property ! 
Lex  Salica,  the  oldest  and  most  authentic 
of  our  laws,  is  the  one  in  which  the  stages  in 

'  Quoted  from  memory. 


8o        SLAVERY  IN  GERMANIC  SOCIETY 

the  development  of  liability  on  the  part  of 
the  slave  may  be  studied  most  successively; 
not  that  Lex  Salica  is  the  more  "progressive" 
among  the  laws,  but  because  the  leap  from  the 
rigid  past  to  the  more  lenient  present  seems 
less  tremendous  than  in  many  other  laws. 
In  Lex  Salica  the  intermediate  stage  seems 
as  yet  to  prevail;  there  is  a  certain  wavering 
perceptible  in  the  sections  with  their  variants 
which  is  favorable  to  preserving  most  of  the 
peculiar  traits  of  the  past  and  yet  suggestive 
of  the  future.  In  tit.  40  the  trial  of  the  slave 
on  these  grounds  is  treated  with  a  fulness  and 
comprehensiveness  found  nowhere  else  in  the 
old  laws.  But  even  here  stages  are  per- 
ceptible, making  the  title  rather  hetero- 
geneous and  showing  the  need  of  supplemen- 
tary sections  from  other  titles,^  just  as  the 

'  See  the  great  difference  in  tenor  between  the  stern  tit.  12, 
where  the  slave  suffers  120  blows  for  theft  of  2  sol.,  or  castra- 
tion for  theft  of  6,  and  tit.  4.  i  and  3,  where  120  blows  are 
given  for  theft  of  15  and  35  sol.  respectively.  It  makes  little 
difference  that  in  tit.  12  it  is  punishment,  while  in  tit.  40  it  is 
torture;  in  fact,  one  would  expect  in  the  last  case  the  blows 
to  be  augmented.  But  if  tit.  40  is  modeled  on  Leg.  Visig., 
vi.  I  and  4.,  tit.  40  must  be  of  later  origin  than  tit.  12,  while 
in  itself,  except  in  regard  to  detail,  it  seems  no  particular 
improvement  on  its  "lordly"  prototype. 


RESTITUTION  8i 

law  itself  is  heterogeneous  and  needs  explana- 
tion and  commentary  from  other  sources. 
While  §  I  states  the  naked  rule  that  the 
slave  accused  of  considerable  theft  should 
be  put  to  torture  in  order  to  make  a  clean 
breast  of  it,  §  2  starts  a  new  principle  and 
only  §§4  and  5  take  up  the  thread  begun 
in  §  I .  The  matter  was  evidently  altogether 
a  private  affair,  an  expression  of  the  private 
jurisdiction  of  the  lord  to  whom  the  injured 
party  appealed  for  retribution  and  to  whose 
jurisdiction  he  succeeded'  as  soon  as  the 
master  agreed  to  let  him,  instead  of  trying 
the  slave  himself.  The  slave  was  then  put 
to  the  post  or  stretched  on  the  bench  and  the 
quest  proceeded,  the  plaintiff  being  provost, 
the  lord  for  greater  security  supervising. 
Very  likely  the  lord  also  had  previously 
employed  a  similar  method  of  obtaining 
truth;  under  him,  however,  the  torture  was 
partly  a  castigation,  much  as  animals  are 

'  It  is  significant  that  the  plaintiff  himself  did  the  torturing, 
i.e.,  himself  delivered  the  blows.  Evidently  he  alone  could 
be  trusted  to  make  the  blows  tell,  the  lord  having  been  more 
inclined  to  perfunctory  treatment,  to  let  the  slave  slip  through 
without  too  great  a  hurt,  so  as  not  to  make  him  unfit  for  work 
for  weeks  afterward. 


82        SLAVERY  IN  GERMANIC  SOCIETY 

beaten  out  of  anger  and  desire  for  revenge. 
But  in  this  latter  case  the  vengeance  was  of  a 
more  poignant  nature,  the  first  fumbhng 
attempt  at  justice,  blindly  administered. 
If  the  quest  succeeded  the  slave  was  either 
killed^  or  reduced  as  utterly  as  cunning 
could  make  him.  He  was  henceforth  merely 
the  beast  of  burden,  the  obedient  tool, 
nothing  more.  In  §  6  the  willingness  of  the 
lord  to  let  his  slave  undergo  torture  (pro- 
vided he  was  himself  secured)  becomes 
obligatory,  and  the  laws  look  upon  the  un- 
willing lord  as  the  true  perpetrator  of  the 
crime,  the  secret  thief  or  murderer."  In 
§§  7-10  the  matter  has  progressed  even 
farther.  The  proceedings  have  been  or  may 
easily  be  transferred  to  the  public  court. 

*  It  is  impossible  to  see  who,  the  state  or  the  private  indi- 
vidual, should  have  been  particularly  concerned  about  what 
punishment  was  given  the  criminal  slave  (notwithstanding 
Lex  Sal.,  40,  4,  to  the  contrary)  unless  it  were  the  church. 

'  But  that  it  was  the  slave  and  not  the  lord  against  whom 
justice  was  henceforth  directed  is  evident  from  the  demand 
that  the  injured  party,  when  the  slave  had  confessed,  should 
pay  the  price  of  the  slave  to  the  lord,  who  was  thereby  in  a 
measure  reimbursed  for  the  loss  in  laboring  power.  For  that 
money,  the  law  implies,  he  could  buy  another,  everybody 
thus  having  received  his  proper  due. 


RESTITUTION  83 

mainly  because  the  lord  has  been  negligent 
or  unwilling  to  give  up  the  slave,  the  lord 
thereby  having  loaded  himself  with  the 
guilt  which  would  under  other  circum- 
stances have  been  the  slave's,  and  being 
obhged  to  make  amends  accordingly.  The 
slave  then  had  to  be  presented  in  court  before 
the  assembly  of  freemen,  thus  passing  from 
obscurity  into  the  full  daylight  of  public 
procedure — hardly  to  his  own  satisfaction, 
since  the  publicity  of  his  punishment,  his 
naked  misery,  must  have  made  his  smart 
even  keener. 

Paying  heavy  fines  and  damages  and 
yielding  the  slave  in  addition  must  have 
m^et  with  objection  on  the  part  of  the  lord, 
and  under  certain  circumstances  must  even 
have  told  on  his  economic  condition.  The 
uncertainty  of  the  whole  proceeding — for  the 
plaintiff,  of  securing  evidence  of  the  guilt; 
for  the  lord,  of  being  properly  reimbursed 
for  his  loss  provided  the  slave  was  innocent — 
was  such  that  a  less  stringent  method,  except 
in  flagrant  cases,  came  to  be  preferred.  The 
lord,  therefore,  according  to  tit.  40.  2  (Var.) 


84        SL-WERY  IX  GERMANIC  SOCIETY 

and  12.  I  (T'jr.),  was  permitted  to  release 
the  hide  of  his  slave  from  torture  and  pun- 
ishment by  pacing  a  nominal  fine  adjusted 
to  a  nominal  value  of  the  slave'  and  himself 
execute  the  punishment — all  presumably  to 
be  done  only  in  case  the  plaintiff  had  no 
objection.     A  new  phase  was  reached,  how- 

^  This  was  3  sol.  against  12  sol. — what  the  German  authors 
call  Sdavenbusse,  the  meaning  of  which,  by  the  way.  is  not 
quite  clear  (imless  it  be  that  the  fine  for  the  slave  is  hence- 
forth adjusted  to  the  socially  gmall  value  of  the  slave  in  the 
same  way  in  which  pa\'ments  for  the  free  are  adjusted  to  his 
high  value).  The  fine  is  certainly  small  as  compared  with 
the  pajTnent  for  releasing  the  hide  demanded  from  the  lord  in 
other  laws. — Lex  Rib.,  cc  18,  19  (36  sol.);  Leg.  Lang.,  Roth., 
c.  254  (40  soL);  Wihiraed's  Laus,  c.  27  (70  shill.).  But  Lex 
Salica  is  so  much  older  that  the  comparison  hardly  coimts. 
Notwithstanding  the  difference  in  age,  the  title  generally 
comes  nearest  in  tenor  and  meaning  to  FJ)1.,  x.  c.  40,  where 
are  demanded  6  aurar,  or  rather  2.  i  sol.,  since  it  is  counted 
in  aurar,  for  the  hide  of  the  thralL  The  3  soL  nevertheless 
are  something  of  a  puzzle.  Do  they  signif>'  (i)  that  the 
slaves  were  too  plentiful  to  have  much  of  a  price  paid  for 
them;  or  (2)  was  the  price  of  the  slave  perchance  so  low 
because  he  had  lost  in  value,  as  animals  do  which  are  known 
to  be  troublesome  and  \-icious;  or  (3)  did  the  plaintiff  agree 
to  the  small  amount  because  his  suspicion  was  not  well 
founded  and  he  was  glad  to  get  something  for  his  pains  (on 
the  order  of  tit.  53.  where  the  offense  being  "worth"  15  sol., 
the  plaintiff  is  "bribed  off"  with  3)  ?  Plainly  the  price  as 
well  as  the  pimishment  are  indicative  of  warlike  times  and  of 
the  extreme  social  inferiority  of  the  slave. 


RESTITUTION  85 

ever,  when  the  master  refused  to  reclaim  his 
slave  from  justice  and  made  him  bear  the 
results  of  his  misdemeanor  altogether  him- 
self. In  other  words,  paying  for  keeping 
the  "thing"  could  not  counteract  the  com- 
plications caused  by  the  "person,"  and  the 
master  was  inclined  to  let  the  latter  bear 
the  effects  of  his  o\ati  acts/     This  must  to 

'  But  tills  feature  is  not  met  with  in  Le:c  Sal.  only  in  later 
legislation,  the  capitularies  and  other  laws.  G\)\.,  c.  259, 
decrees  that  where  the  lord  will  not  free  the  slave  with  oath, 
the  slave's  head  shall  be  struck  off.  It  is  remarkable  to  find  in 
Xorse  law,  where  the  old  and  the  new  at  first  sight  meet 
abruptly,  so  clear  an  indication  of  the  intermediate  stage  as  in 
FJ)l.,  X.  c.  40  (almost  a  Lex  Sal.,  tit.  40,  over  again):  "Ever\-- 
one  shall  be  responsible  for  his  slave  bom  in  this  countr>', 
both  with  word  and  with  oath  in  what  happens  to  him  either 
in  word  or  in  deed.  But  if  he  [the  slave]  nms  away  from  his 
lord,  then  the  lord,  if  he  can  reach  him,  within  five  days  shall 
have  him  flogged.  But  if  he  [the  lord]  will  not  flog  him,  then 
the  king's  baiUff  shall  take  him  and  within  five  days  have 
him  flogged  and  make  use  of  him  for  himself.  But  the  hus- 
bandman has  the  choice  of  releasing  the  slave's  hide  with  six 
counted  aurar  and  have  his  slave  himself.  But  if  he  [the 
slave]  be  of  foreign  birth,  and  suit  is  brought  because  of  him, 
then  his  lord  shall  sell  that  slave  to  the  one  who  has  suit  and  he 
shall  torture  him  till  he  tells  the  truth  in  such  a  way  that  he 
is  worse  neither  in  work  nor  in  worth;  and  later  the  husband- 
man shall  take  that  slave,  if  he  is  innocent,  and  use  him.  But 
if  the  strange  slave  runs  away  from  his  lord  and  he  is  after- 
ward taken,  within  five  days  he  shall  be  castrated  or  the  hus- 
bandman shall  have  his  slave."     See  also  G\>\.,  c.  262. 


86        SLAVERY  IN  GERMANIC  SOCIETY 

some  extent  have  been  connected  with  a 
decrease  in  the  demand  for  unfree  laborers 
and  an  increase  in  the  number  of  needy  free, 
so  that  the  master  was  not  so  dependent 
upon  his  stock  of  slaves.  But,  although 
some  outside  cause  must  have  helped  to  free 
the  master  from  the  economic  necessity  of 
buying  back  the  slave  just  because  he  was  a 
laborer  born  to  the  toil,  I  am  at  a  loss  to  point 
out  the  exact  evidence  of  this  change.  The 
fact  of  the  slave's  being  given  up  to  corporal 
and  capital  punishment  made  crime  more 
difficult  for  him  and  developed  the  sense  of 
moral  responsibility  which  made  it  more 
natural  to  him  to  answer  for  his  own  deeds. 
Hitherto  the  slave  had  never  come  to 
court  except  on  extraordinary  occasions  to  be 
punished,  or  to  appear  as  defendant,  except 
for  the  benefit  of  the  lord.'     But  henceforth 

'  Lex  Sal.,  tit.  39,  Add.  i  and  2,  where  the  slave  testifies 
at  the  malloberg  (with  witnesses)  in  favor  of  the  lord  against 
the  freeman  who  had  abducted  him.  Cf.  Digest,  xxii.  5,  7, 
where  testimony  of  slaves  was  admitted  when  all  other  proofs 
were  lacking;  also  in  case  of  rape  and  Use-majeste  {Edict. 
Theod.,  cc.  19,  49).  King's  slaves  and  slaves  of  the  Abbey  of 
St.  Germain  could  swear  in  court  as  well  as  the  free,  but  more 
trust  was  put  in  the  confession  pressed  from  them  by  torture 
(Guerard,  Vol.  I,  p.  311). 


RESTITUTION  87 

the  lord  might  send  his  slave  to  court  if  he 
chose,  although  he  had  to  appear  with  him  as 
the  guarantor  that  the  demands  of  the  law 
were  fulfilled.  The  slave  was  even  admitted 
to  ordeal  as  any  freeman.^  But  the  punish- 
ments he  underwent  were  very  much  the 
same ;  at  least  the  laws  suggest  no  difference : 
(i)  whipping  (3  sol.),  (2)  castration  (6  sol.), 
(3)  capital  punishment.  In  other  words, 
the  property  relation  which  had  been  pre- 
dominant before  underwent  a  distinct  change: 
it  was  not  so  much  the  ownership,  the  eco- 
nomic relation,  as  the  social  which  came  to 
the  fore.  As  Jastrow  has  expressed  it: 
the  slave  was  henceforth  rather  in  his  lord's 
protection,  in  his  mund.'^  The  slave  was 
still  an  unfree,  but  he  was  not  a  thing  nor 
an  animal,  he  was   a  person,  although  an 

'  See  the  first  instance  of  ordeal  as  open  to  a  slave  in  Lex 
Sal.,  c.  iv.  s  and  6;  v.  12;  Lex  Rib.,  30,  i  and  2.  An  innova- 
tion of  the  church?  The  first  time  the  church  expresses 
the  responsibility  of  the  slave  is  during  the  early  part  of  the 
sixth  century,  soon  after  the  conquest  of  Gaul  by  the  Franks; 
cf.  the  famous  Concil.  Agathen.  (a.  506),  c.  62  (on  Visigothic 
territor>'),  confirmed  by  Concil.  Epaon.  (a.  517),  c.  34;  for  a 
case  of  slaves  admitted  to  trial  by  combat  as  champions  for 
others,  slave  against  slave,  see  Lex  Bajuw.,  17,  i  and  2. 

'  I  cannot  guarantee  the  exact  wording. 


88        SLAVERY  IN  GERMANIC  SOCIETY 

extremely  reduced  one.  This  change  very 
likely  hangs  together  with  the  general 
amelioration  of  family  relations  which  can 
be  observed  in  the  gradual  reduction  of  the 
mund  from  a  relation  of  absolute  power  to 
one  of  conditional  guardianship  under  the 
supervision  of  the  kin,'  the  slave  moving 
along  as  it  were  in  the  wake  of  the  free.  The 
lord  held  court  where  the  slave  appeared 
as  defendant,^  different  from  the  summary 
justice  of  before,  and  the  greatest  change  of 
all  is  that  the  slave  paid  for  the  stolen  object,^ 
and  for  the  release  of  his  hide"  either  to  the 

'  Heusler,  Instihitionen,  Vol.  I,  p.  21. 

^  In  England,  where  the  relation  of  the  kldford  to  free  and 
unfree  alike  (the  word  is  first  mentioned  in  Ine's  Laws,  a.  688- 
90,  ed.  Liebermann)  evidently  had  existed  for  a  long  while 
{Aethelherht,  c.  90,  a.  601-4),  the  slave  must  at  an  early  date 
have  had  the  privilege  of  answering  for  himself.  As  Guerard 
remarks  (Vol.  I,  p.  278):  "Les  trois  conditions  serviles — 
I'esclavage,  la  servitude,  et  le  servage — existerent  simultane- 
ment."  There  are  other  traits  (or  rather  absence  of  such,  for 
example,  castration)  which  indicate  that  the  English  laws  were 
either  conspicuously  silent  in  regard  to  the  slave  or  far  less 
severe  in  their  treatment  of  him. 

3  Aethelherht,  c.  90. 

4  Withraed,  c.  10,  15;  Ine's  Laws,  c.  3,  i.  See  the  apocry- 
phal: "aut  tres  [sex]  solidos  reddat — pro  dorso  suo"  {Lex  Sal., 
12,  I  and  2),  which  after  all  may  express  the  change  that 
really  took  place. 


RESTITUTION  89 

law,  which  would  be  to  the  injured  party,  or 
to  the  lord  who  was  supposed  to  have  paid 
the  price  beforehand.  Thus  was  established 
a  responsible  relation  to  society  on  the  part 
of  the  slave.  Of  course,  what  the  slave 
had  to  pay  with  was  in  the  first  place  accorded 
him  by  the  lord,^  but  it  must  have  been  some- 
thing which  the  slave  had  an  opportunity  to 
make  more  valuable  by  his  own  industry; 
and  here  we  come  back  to  the  question  of 
the  slave's  property  in  the  shape  of  his 
peculium  or  orka. 

That  slaves  should  have  been  settled  on 
land  of  which  they  paid  a  certain  amount 
of  produce  as  due^  and  kept  the  remainder 
for  themselves,  seems  to  be  the  most  natural 
solution  of  their  maintenance  and  the  ali- 
mentation of  their  children.  The  laws  and 
historical  records  make  little  mention  of 
this.     To  have  the  slave  do  work  for  himself 

'  Gu6rard,  Vol.  I,  p.  294:  "Dans  la  regie  le  maitre  retenait 
le  pecule  du  serf  qu'il  vendait  (Leg.  F/5/g.,v.  4,  15;  Lex  Bajuw., 
XV.  6),  et  cette  coutume  etait  conforme  au  droit  Romain." — 
Digest,  xviii.  i,  29;   xxi.  2,  3. 

^  Lex  Bajuw.  (ed.  Walter),  i.  14;  Leg.  Alamann.,  21  (A)  may 
serve  as  Instances,  although  hardly  typical  of  anything  but  the 
customs  of  the  church. 


90        SLAVERY  IN  GERMANIC  SOCIETY 

and  keep  the  income  from  it  seems  an 
equally  simple  solution  of  how  to  provide 
for  everybody  within  the  estate.  If  the  law 
formerly  indulged  in  the  fiction  that  the 
slave  had  no  identity,  the  law  now  indulged 
in  the  diametrically  opposite  one  that  the 
slave  was  less  of  a  burden,  if  he  were  allowed 
to  look  after  something  which  gave  him  the 
shadow  of  self-possession.  Originally  and 
legally  the  slave  could  call  nothing  his  own; 
having  no  legal  personality,  he  could  hold  no 
property;  everything,  as  it  was  given  to  him, 
could  also  be  taken  away  from  him;  but 
practically  it  became  the  custom  (very  early, 
as  it  seems^)  to  recognize  a  certain  amount  of 
property  as  his  own.  This  would  spur  him  to 
industry  and  make  him  more  content  with  his 
lot.  Of  course  what  he  earned  was  ulti- 
mately the  lord's,  as  he  himself  was  the  lord's, 
and  at  his  death  it  all  came  back  to  the  lord, 

'  But  at  widely  different  times  within  each  nation;  cf.  Lex 
Sal.,  tit.  12,  26,  2;  Var.  (a.  490-510);  Lex  Rib.,  17,  18,  19 
(a.  560?),  where  the  fact  of  slaves  having  possessions  appears 
as  a  possibility,  and  Anglo-Saxon  laws,  Aethelberht,  c.  90 
(601-4),  where  this  seems  already  a  matter  of  long  standing. 
Further,  the  somewhat  ambiguous  Leg.  Lang.,  Roth.,  c.  234  (a. 
643),  and  last  but  not  least  the  Scandinavian  laws,  which 
if  late  in  date  are  old  in  content. 


RESTITUTION  91 

who  bestowed  it  anew  on  the  slave's  children 
or  on  some  other  slave;  but  in  the  meantime 
it  helped  the  slave  within  certain  limits  to 
manage  for  himself.  That  with  the  consent 
of  the  lord  he  could  buy  and  sell,  receive 
gifts,  and  make  payments  seemed  only  the 
result  of  his  having  a  little  property.  The 
question  is,  of  course,  how  much  of  what  he 
earned  was  his  own — a  question  which  I 
must  put  off  to  a  more  convenient  time. 
The  laws  occasionally  speak  of  peculium, 
though  meaning  not  land  but  inventory,^ 
which  exceedingly  complicates  the  question. 
There  is  a  possibility,  which  amounts  almost 
to  a  probability,  that  the  peculiar e  sometimes 
spoken  of^  (but  always  in  the  same  set 
terms)  ^  in  the  Formulae  for  the  liberation 
of  the  slave  may  have  reference  to  something 
different  from  cattle  or  property  in  general. 
The  expressions  labor  are,  conlaborare,  col- 
laboratum,  suggest  far  more  the  work  on  the 

'  Roth.,  c.  234;  doubtful,  Lex  Cham.,  14. 

^  Form.  Andec,  45,  59;   Form.  Marc,  ii.  29,  33,  etc. 

3".  .  .  .  peculiare quod  ....  laborare potuerit " ;  Form. 
Andec,  59:  ".  .  .  .  peculiare  concesso  quodcunque  laborare 
potuerint";  Form.  Marc,  ii.  29:  "peculiare  quod  habet"; 
Form.  Bitur.,  8,  etc. 


92        SLAVERY  IN  GERMANIC  SOCIETY 

soil,  the  cultivation  of  land.  Thus  the 
phrase:  "PecuHare  quidem  suum  sive  col- 
laboratum  cum  omnibus  facultatibus  suis" 
{Form.  Cod.  Laudum.,  14)  points  to  land 
(perhaps  a  clearing)  which  is  to  be  given 
the  liberated  for  his  maintenance.  The 
fixedness  of  terms,  however,  is  very  remark- 
able' and  the  words  may  mean  something  or 
nothing,  according  to  whether  it  is  possible 
to  prove  that  labor  are,  conlaborare,  are  used 
only  for  labor  in  connection  with  land. 
This  it  is  possible  to  do  at  least  in  regard 
to  conlaborare.^  Laborare  signifies  work  in 
general,^  often  connected  with  the  possession 

'  Form.  Sal.  Lindenbr.,  g:  ".  .  .  .  peculiare  vero  suo  seu 
conlaborato  quod  habet  vel  deinceps  elaborato  potuerit,  sibi 
habeat,  concessum  adque  indultum,"  etc.  In  this  case  it  is 
a  slave  who  liberates  his  slave.  But,  notwithstanding,  the  same 
terms  occur,  e.g.,  mundeburdium,  defensio,  obsequimn,  which 
figure  in  the  chart  given  by  a  freeman,  although  it  is  more 
than  suspicious  that  the  liberated  should  owe  obsequium  to 
his  inferior. 

'Form.  Sal.  Bign.,  22:  ".  .  .  .  decima  de  omnia  fructa 
quicquid  super  ipsam  terram  conlaborare  potueris."  In 
connection  with  peculiare,  see  Form.  Sal.  Mcrk.,  14;  Sal. 
Lindenbr.,  20. 

^ Form.  Marc.,  i.  ^S:  ".  .  .  .  antecessores  abbatis  ibidem 
laboraverunt";  ibid.,  ii.  7:  ".  .  .  .  et  quod  pariter  in  con- 
jugium  positi  laboravimus";  ibid.,  17:  ".  .  .  .  vel  in  tuo 
serviter  pariter  laboravimus." 


RESTITUTION  93 

of  and  care  for  property,  in  this  case  most 
likely  land;  conlaborare,  however,  empha- 
sizes the  meaning  of  work,  hard  work,  as 
suggested  by  the  prefix,  much  as  in  the  Ger- 
man he-arheiten.  In  case  peculiare  should 
have  followed  the  common  meaning  given 
peculium  and  indicate  cattle,'  the  heads  or 
herd  allowed  the  slave  would  have  given  him 
little  help  in  maintaining  his  freedom,  even 
if  the  latter  were  given  him  in  perpetuity, 
unless  the  bit  of  land  on  which  to  graze 
were  secured.  In  a  -  number  of  cases  the 
liberated  slave,  as  already  indicated  (note  i), 
was  freed  from  the  obsequium,^  i.e.,  the 
further  dependence  upon  the  liberator;  and 
although  this  privilege  may  not  have  counted 
for  a  great  deal,  since  the  liberated  sooner 
or  later  was  obliged  to  ask  for  someone's 
protection,  yet  the  ownership  of  land  on 
which  social  and  political  rights  rested  must 
have  been  accorded   him   before   the  chart 

'  As  in  Form.  Bitiir.,  15,  where  a  freeman  transfers  owner- 
ship in  all  his  property  to  his  wife.  The  real  difficulty  in  the 
explanation  of  peculiare,  exactly  as  in  the  case  of  peculium, 
lies  in  its  frequent  use  for  free  and  unfree  property  alike.  Cf. 
Form.  Sal.  Merk.,  S3- 

''Form.  Marc,  ii,  32;   Cart.  Scnon.,  6,  43,  etc. 


94        SLAVERY  IN  GERMANIC  SOCIETY 

could  even  suggest  possibilities  of  that  kind. 
For  establishing  beyond  doubt  the  existence 
of  a  true  slave's  peculium  the  Norse  Royal 
Sagas  may  perhaps  help  us.  The  saga 
ipiajs  hins  Helga  [Heimskringla],  c.  22) 
speaks  of  a  rich  and  powerful  lord  and  says : 
Erling  had  over  thirty  thralls  at  home,  besides 
other  servingfolk;  to  his  thralls  he  allotted  each 
day's  work,  which  being  done  he  gave  them  leave  and 
leisure,  each  one  who  wished,  to  work  for  himself  in 
the  dusk  or  at  night;  he  gave  them  acre-land  where- 
in to  sow  corn  for  themselves,  and  to  get  them  money 
by  the  increase  thereof;  he  set  a  price  and  ransom 
on  each  of  them,  and  many  redeemed  themselves 
the  first  or  second  year,  but  all  in  whom  was  any 
thrift  redeemed  themselves  in  three  years.  With 
that  money  Erling  bought  himself  other  thralls! 

And  the  same  saga  tells  later  about  the 
same  lord  and  his  slaves  (in  regard  to  the 
incident  with  Asbjorn  Selsbani,  c.  123): 

Said  Erling:  "It  seemeth  to  me  most  like  that 
my  thralls  own  so  much  corn  as  that  thou  wilt 
have  a  full  cheaping;  and  they  be  not  within  laws 
or  land-right  with  other  men."  Then  the  thralls 
were  told  about  the  bargain,  and  they  gave  forth 
corn  and  malt  and  sold  it  to  Asbjorn,  who  loaded 
his  ship  even  as  he  would.     (Morris'  tr.) 


RESTITUTION  95 

The  land  was  given  to  thralls,  not  merely 
as  their  peculium,  but  as  their  property 
equivalent  to  their  freedom;  Laxdaela  Saga 
(c.  6)  gives  an  instance  of  where  it  is  told 
how  Unnr,  settling  a  portion  of  Iceland  with 
her  retainers,  gave  to  her  freedman  one 
valley,  to  her  slave  another.' 

In  the  possession  of  such  peculium  or  in- 
come from  his  work  lies,  in  my  opinion,  the 
secret  of  the  ultimate  amelioration  of  the 
state  of  the  slave.  It  was  the  fundamental 
principle  of  his  gradually  improving  condi- 
tion. As  it  was  economic  causes  which 
chiefly  led  to  the  establishment  of  slavery, 
so  it  must  have  been  economic  causes  which 
helped  to  bring  about  the  aboUtion.^    The 

'"Hundi  het  lausingr  hennar;  ....  honum  gaf  hon 
Hundadal.     Vifill  het  Jjraell  ....  hon  gaf  honum  Vifilsdal." 

=  The  possession  of  a  peculium  had  much  the  same  signifi- 
cance then  as  mihtary  service  with  the  accompanying  benefice 
in  the  lord's  or  senior's  retinue  had  at  a  later  period.  Service 
and  benefice  became  the  lever  which,  unsuspected  by  the 
ruling  class,  raised  the  minister ialis,  or  miles,  from  the  position 
of  mere  knecht  to  that  of  vassal  and  privileged  follower  who 
ended,  perhaps,  as  bailiff  or  lieutenant  to  the  king.  The 
benefit  of  the  peculium  was,  of  course,  far  more  humble  in 
nature,  as  were  agricultural  pursuits,  compared  with  the 
danger  and  bravado  of  a  warlike  profession. 


96        SLAVERY  IN  GERMANIC  SOCIETY 

possession  of  property  made  the  slave,  under 
circumstances,  able  to  pay  fines,  and  the  lord, 
although  the  source  of  the  peculium,  was  not 
so  much  engaged  in  a  pecuniary  way,  needing 
to  come  to  the  rescue  only  in  extraordinary 
cases.  The  slave  accordingly  was  less  de- 
spised because  he  was  less  needy  of  constant 
support.  It  must  be  supposed,  too,  that  the 
slave,  on  his  side,  since  he  had  to  pay  himself, 
and  was  less  driven  by  desperation,  tried 
to  commit  fewer  crimes  so  as  not  to  have 
his  little  reduced  to  even  less.  His  little 
having  made  him — only  conditionally,  of 
course — morally  less  dependent  upon  the 
lord,  he  separated  himself  from  the  lord,  as 
it  were,  existed  no  more  solely  for  his  benefit, 
was  far  more  one  of  his  tenants,  retainers, 
represented,  indeed,  by  the  lord,  subject  to 
his  judgment,  but  not  arbitrarily  treated  as  ^ 
an  article  of  absolute  property.  It  is  the 
milder,  less  exposed  form  of  slavery,  that 
which  is  hardly  to  be  distinguished  from 
serfdom. 

There  is  another  species  of  slave  to  which 
reference  has  once  been  made  (p.  92,  n.  i) 


RESTITUTION  97 

and  which  it  is  only  proper  should  be  spoken 
of  in  connection  with  the  slave's  peculium. 
This  is  what  Guerard,  Vol.  I,  §  153,  calls 
the  slave  of  the  slave,  the  servus  vicarius, 
the  helping,  the  "hired"  slave,  as  dis- 
tinguished from  the  servus  ordinarius,  the 
slave  in  charge,  as  it  were.  There  is,  of 
course,  nothing  very  astounding  in  the  slave 
as  husbandman,  under  certain  circumstances, 
being  in  need  of  someone  to  help  and  that  the 
help  was  accorded  him  from  among  the  sur- 
plus slaves  of  the  manor,  for  which  he  paid, 
perhaps,  an  additional  gratification.  The 
position  of  the  vicarius  was  evidently  a 
shade  less  favorable  than  his  temporary 
employer  or,  on  certain  conditions,  even 
master,'  as  it  was  natural  that  when  slavery 
dissolved  itself  into  layers,  an  upper  and 
a  lower,  the  lowest  should  retain  the  traits 
of  severer  bondage,  which  as  yet  could  not  be 
done  away  with.  The  whole  matter,  how- 
ever, is  so  evidently  a  continuation  of  Roman 
customs,  rather  than  a  Germanic  institution, 
that,  in  spite  of  its  great  interest  and  its 

'  Form.  Marc,  ii.  36. 


98        SLAVERY  IN  GERMANIC  SOCIETY 

peculiar  parallel  in  the  "freedman's  freed- 
man"  of  the  Icelandic  law  {Grdgds,  c.  96),  I 
must  refrain  from  further  discussion  of  it  here. 

The  improvement  of  condition  must  also 
have  brought  additional  suffering  to  the 
upper  layer  of  slaves,  particularly  through 
the  publicity  of  punishment  and  the  com- 
petition and  jealousy  of  the  needy  free. 
The  demand  upon  the  slave's  power  of 
resistance  grew  fiercer  and  accordingly 
many  must  have  perished  in  the  struggle. 

It  is  very  likely  that  under  the  influence  of 
this  changed  relation,  as  well  as  through  the 
efforts  of  the  church,  the  marriage  of  the 
slave  comes  to  be  recognized  and  respected. 
Originally  the  slave  could  not  be  married. 
The  master  could  separate  husband  and  wife 
at  any  time  and  dispose  of  either  as  he 
pleased.  With  the  idea  of  the  slave  pos- 
sessing property,  however,  the  thought  must 
have  come  forward  that  he  could  possess  a 
wife  as  well,  and  that  not  even  the  master 
could,  with  impunity,  violate  the  matri- 
monial rights  of  his  slave.^ 

'  Decretum  Vermerensc  (a.  758),  leg.  sec.  ii.  i,  p.  40;  cf. 
with  Cod.  Theod.,  ii.  25,  i;  Grdgds,  c.  iii. 


RESTITUTION  99 

Thus  not  only  the  state,  as  represented 
by  the  king,  or  the  church,  as  the  advocate  of 
brotherly  love,  but  also  the  very  incongruity 
of  slavery  itself  in  connection  with  economic 
and  political  changes  which  no  one  could 
quite  foresee,  helped  the  slave  forward  to  a 
better  existence.  There  are  other  more  ex- 
traordinary and  particularly  humane  signs  of 
betterment  for  the  slave  which  had  nothing 
to  do  with  either  Roman  or  Christian  influ- 
ences, but  sprang  purely  from  Germanic  life, 
and  which  give  us  a  gentler  picture  of  this 
than  we  have  hitherto  been  able  to  have. 
I  refer  to  cases  where  the  kindness  of  possible 
relationship  broke  the  awful  rigor  of  author- 
ity and  took  the  place  of  superiority.  Such 
cases  are  found  in  Norse  and  Swedish  law, 
where  the  slave  who  had  grown  up  in  a  man's 
household  became  almost  his  foster-child  and 
was  called  with  a  common  name,  fostri.^ 
To  him  a  higher  value  was  ascribed;  he  came 
nearer  the  condition  of  a  ''freeman."^  In 
the  case  of  the  fostri  the  master  seems  to  have 

'  Amira,  Vol.  I,  pp.  394,  712,  464. 

^  Saga  Olafs  Trygvasonar,  c.  55;  cf.  Gregory  of  Tours,  v.  18. 
Was  Galen  a  slave  ? 


lOO      SLAVERY  IN  GERMANIC  SOCIETY 

been  obliged  to  redeem  him,  even  where  he 
would  have  left  the  ordinary  slave  to  his  fate.' 
Of  all  slaves  the  fostri  alone  could  legally 
receive  considerable  gifts  from  his  master. 
The  master  could  make  him  presents  up  to 
a  certain  value  without  the  knowledge  of  his 
right  heir.  This  is  probably  because  the 
fostri  was  most  likely  the  master's  own  child 
although  of  slave  birth,  brought  up  by  him 
and  entitled  to  some  favor,  but  with  no 
formal  rights  whatever.^ 

Last  but  not  least  we  may  ask  what,  out- 
side rebellion,  the  slave  did  for  himseK  by  way 
of  peaceful  combination  of  effort.  In  the 
North  nothing  is  heard  of.  Here  no  com- 
merce, no  industry,  no  opportunity  except 
the  ordinary  small  trade  and  hard  labor 
opened  a  way  to  freedom,  and  even  then  only 
for  the  individual,  not  for  the  class.  On  the 
Continent,  however,  where  the  population 
was  larger,  communication  easier,  traditions 

'  Amira,  Vol.  I,  p.  712.  The  wounding  of  a  freeman  by  a 
slave  is  to  be  paid  by  fine  if  slave  be  &  fostri,  otherwise  by  body 
and  life  (p.  464).  The  price  of  an  ordinary  slave  is  3  marks, 
sometimes  4,  of  an  ox  4  marks,  a  stallion  6,  a.  fostri  8. 

*  GJjL,  c.  129;  FJjI.,  ix.  17. 


RESTITUTION  loi 

riper,  and  habits  of  peaceful  occupation  more 
enduring,  the  formation  of  "guilds,"  of 
which  we  have  some  slight  evidence,  seems 
to  have  been  directed  toward  regulation  of 
work  and  services.^  Here  certain  arts  and 
crafts  were  appreciated  or  highly  in  demand ; 
the  freeman  had  no  time  nor  desire  to  learn 
them;  the  slave  seemed  to  be  the  one  from 
whom  such  patience  and  such  attention 
should  be  expected.  The  tradition  of  pro- 
fessional "guilds"  was  still  alive  among  the 
remnants  of  Roman  population;  moreover, 
the  church,  especially  the  monasteries,  and 
the  other  great  lords — ^whose  estates  were 
small  principahties  in  themselves  which  sup- 
plied within  their  Hmits  all  needed  for  numer- 
ous dependents— could  not  but  want  their 
slaves  to  combine  for  the  perfection  of  their 
training  and  rapidity  of  their  work.  In 
more  favorable  instances  the  desire  for  higher 
wages  and  better  sales  would  compel  closer 
association,  although  this  rough  concern 
of  dependent  workers  could  hardly  be  given 
the  name  of  guild.     The  conscious  existence 

'  Thierry,  Recils,  Vol.  I,  p.  260. 


I02      SLAVERY  IN  GERMANIC  SOCIETY 

of  the  guild  began  only  when  serfdom  too 
had  run  the  greater  part  of  its  course,  and 
free  labor  combined  with  half-free  to  the 
establishment  of  an  industrial  class.  Such 
as  they  were,  the  combines  of  slaves  met 
with  favor  as  long  as  no  danger  from  them 
appeared  to  threaten  state  or  society.  It  is 
this  sense  of  danger  which  seemed  revealed 
in  the  capitulary  of  Charles  the  Great  (44. 
Bor.,  c.  10),  where  it  is  ordained  that  slaves, 
as  members  of  conspiracies,  should  be 
flogged,  although  nothing  is  said  about  the 
nature  of  the  conspiracy.  What  reasons 
slaves  should  have  had  for  conspiring,  except 
the  hope  of  bettering  their  condition,  it  is 
difficult  to  see.  It  is  not  unreasonable  to 
suppose,  however,  that  the  conspiracy  might 
have  had  some  reference  to  the  "guilds" 
which  the  Frankish  government  watched  with 
as  jealous  an  eye  as  in  the  past  the  Roman. 
As  for  what  the  guilds  did  for  the  slave  besides 
rousing  suspicion,  we  can  only  surmise  that 
through  them  those  who  had  no  land  earned 
in  another  way  more  rapidly  and  securely 
what  helped  in  the  end  to  buy  freedom. 


CHAPTER  IV 
LIBERATION 

The  personality  of  the  slave  being  once 
recognized,  even  if  only  indistinctly,  his 
value  as  thing  became  more  obscured,  and  he 
was  a  man  in  bondage  with  few  rights,  indeed, 
but  not  without  them  entirely.  The  lord 
wielded  absolute  power  over  him  only  in 
theory;  practically  he  protected  him,  and 
was  his  economic  mainstay  when  the  slave 
could  not  manage  for  himself.  The  condition 
of  half -free  thus  dawned  for  the  slave;  not 
free  and  yet  not  quite  a  slave,  a  little  of 
each,  more  of  the  latter  than  of  the  former — 
this  is  the  next  definite  stage.'     Still  there 

'  This  stage  in  modern  conception  would  correspond  to  the 
serf.  Still,  even  if  Seebohm's  English  Village  Commwiity 
(p.  405)  says:  "Whenever  a  lord  provided  his  slave  with  an 
outfit  of  oxen,  and  gave  him  a  part  in  the  ploughing,  he  rose 
out  of  slavery  into  serfdom,"  yet,  the  word  "serf"  there  seems 
to  be  used  only  in  its  modern  theoretical  sense.  It  is  safe  to 
say  that  the  real  change  was  neither  so  sudden  nor  so  com- 
plete as  the  passage  would  otherwise  indicate.  At  our  distance 
of  time,  no  doubt,  the  gradual  movement  is  imperceptible, 
103 


I04      SLAVERY  IN  GERMANIC  SOCIETY 

were  ways  to  make  him  absolutely  unre- 
strictedly free,  and  the  original  humanity  in 
him  restored  to  its  full  rights.  But  these 
were  the  rarer  instances,  because  they  were 
the  more  radical  and  perilous,  while  his  grad- 
ual Hberation  through  the  successful  work 
of  generations  was  the  far  more  common. 

We  have  already  mentioned  the  agencies 
that  helped  to  bring  about  the  amelioration 
of  slavery.  We  shall  meet  them  again  in 
studying  the  liberation  of  the  slave,  acting, 

and  we  see  as  sudden  changes  what  were  necessarily  slow. 
At  any  rate,  the  name  servus  remained  for  the  serf,  and, 
although  we  know  the  condition  of  the  serf  (as  a  type)  only 
from  the  period  of  its  crystallization  (twelfth  and  thirteenth 
centuries),  it  is,  perhaps,  owing  to  the  identity  of  names  that 
the  development  of  what  is  technically  called  serfdom  is 
usually  ascribed  to  a  much  earlier  period.  But  there  is  no 
evidence  to  show  that  the  lord,  or  the  law,  for  that  matter, 
distinguished  between  the  servus  of  the  one  kind  or  of  the 
other.  The  dividing  line  was  so  floating,  and  of  such  indi- 
vidual (local)  rather  than  general  (national)  importance,  that 
the  identity  of  names  may  as  well  speak  for  a  prolongation 
of  slavery.  The  servus  of  the  one  group  had  opportunities 
which  the  other  had  not,  but  these  opportunities  did  not 
count  for  enough  to  warrant  treating  the  new  as  so  different 
from  the  old  as  to  give  it  a  new  name.  The  mansuarius  was 
distinct  from  the  famulus,  the  puer,  the  ministerialis,  but  he 
was  servus  as  well  as  they.  The  servus  settled  on  land 
remained  to  all  intents  and  purposes  still  a  servus,  i.e.,  a  slave. 


LIBERATION  105 

however,  less  generously  now  that  the  last 
step  is  to  be  taken,  but,  on  the  whole,  tending 
to  help  him  forward.  The  gradual  leveling 
of  the  free  and  the  rise  of  an  almighty 
aristocracy  that  demanded  a  large  retinue, 
such  as  the  later  Frankish  empire  and  the 
early  feudal  period  present,  assisted  the  slave 
greatly.  Philanthropic  tendencies  on  one 
side  and  economic-poUtical  changes  on  the 
other  also  worked  in  his  favor.  It  cannot  be 
said  that  the  end  was  reached  before  the 

until  he  could  be  distinguished  as  belonging  to  a  class,  a 
change  which  it  undeniably  would  take  some  generations  to 
bring  about  fuUy.  As  little,  therefore,  as  the  Virginia  slave, 
given  a  garden  patch  to  cultivate  and  a  cabin  to  live  in, 
ceased  to  be  a  slave,  because  he  was  no  longer  an  inmate  of 
the  manor,  or  as  little  as  the  villein  of  later  ages  ceased  to  be  a 
vellein  de  facto  and  dc  jure  because  he  ran  off  into  the  city 
and  became  absorbed  among  the  many  working  hands  there, 
just  so  little  did  the  slave  of  the  Merovingian  or  Carolingian 
time  become  a  serf  in  our  sense  until  a  reasonable  time  had 
gone  by,  during  which  this  new  condition  and  all  it  involved 
had  become  established  and  recognized  as  a  definite  feature 
of  social  and  economic  life.  I  think,  on  the  whole,  it  may  be 
said  that  a  great  deal  of  unclearness  exists  in  regard  to  what 
is  to  be  the  criterion  of  a  serf;  is  he  a  slave  liberated  to  the  state 
of  serf,  or  is  he  a  slave  settled  on  land  merely  and  growing  out 
of  slavery  by  degrees  into  a  state  not  definite  at  first,  but 
becoming  by  imitation  something  similar  to  the  litus,  the 
colonus  ? 


io6      SLAVERY  IN  GERMANIC  SOCIETY 

eleventh  and  twelfth  centuries,  and  not 
quite  even  then.  The  development  of  a 
half-free  class  took  the  place  of  the  previous 
development  of  an  unfree;  but  this  new 
class  rose  largely  from  elements  which  had 
no  connection  with  the  older  slave  class. 
On  the  contrary,  it  was  created  by  the  whole- 
sale reduction  of  the  bankrupt  German  free- 
man to  economic  servitude,  such  as  had  taken 
place  many  centuries  before  by  the  gradual 
reduction  of  the  Roman  free  farmer  to 
colonus.  As  in  even  republican  Rome  there 
was  room  largely  only  for  capitalists  and 
laborers  bound  to  the  soil,  so  in  the  later 
Frankish  empire,  there  was  rarely  space  for 
others  than  the  feudal  lords  and  their 
tenantry,  of  which  the  originally  unfree  por- 
tion had  a  tendency  to  work  upward,  while 
the  free  tended  to  sink  below.  In  the 
meantime  the  original  slave  became  absorbed 
among  the  free  and  disappeared. 

There  is  no  topic  more  difhcult  to  treat 
systematically  than  the  liberation  of  the 
slave.  National  peculiarities,  a  variety  of 
conditions  which  show  the  governing  thought 


LIBERATION  107 

each  time  in  a  different  light,  and  are  often 
hard  to  bring  under  one  rule,  demand 
each  some  special  attention.  For  the  sake  of 
a  more  rapid  survey,  and  as  an  attempt  to 
contribute  toward  the  solution  of  the  ques- 
tion, the  main  principles  are  here  briefly 
pointed  out. 

There  were  various  ways  in  which  the  slave 
could  be  given  his  freedom :  (i)  his  liberation 
could  be  either  complete  or  limited  (condi- 
tional); (2)  it  could  be  of  public  or  private 
character;  (3)  it  could  be  gratuitous  to  the 
slave,  or  granted  on  the  payment  of  his 
(nominal)  value  to  the  lord,  either  by  him- 
self or  someone  else;  (4)  and  it  could  be 
given  by  nation,  king,  church,  or  private 
individual. 

In  regard  to  the  first  three  points,  the 
liberation  which  was  public  was  often  com- 
plete and  sometimes  gratuitous  in  character, 
though  oftener  dependent  upon  the  payment 
of  the  stipulated  fee;  while  the  private  and 
unceremonious  liberation  was' likely  to  be  con- 
ditional and  limited  because  of  the  absence 
or  only  partial  payment  of  the  proper  fee. 


io8      SLAVERY  IN  GERMANIC  SOCIETY 

In  regard  to  (4),  the  source  of  liberation,  it 
appears  most  likely  that  church  and  king, 
because  of  their  position,  should  be  oftenest 
inclined  to  give  freedom  unconditionally  and 
without  fee;  while  the  nation,  owing  to  the 
nature  of  the  act,  should  be  least  inclined  to 
liberate  and  should  do  it  only  with  great 
sacrifice  and  ceremony.  Private  individuals, 
however,  would  be  likely  to  do  so  oftener  and 
in  order  to  secure  benefits  for  the  master 
rather  than  for  the  slave.  There  is  evi- 
dence, however,  to  show  that  the  church 
favored  manumission  of  an  unlimited  nature 
largely  only  where  she  was  not  herself 
concerned;  while  by  her  frequent  limited 
manumissions  of  her  own  slaves  she  most  of 
all  helped  to  create  a  class  of  half-free  as  a 
regular  institution  and  economic  necessity.' 
The  king  as  the  representative  of  the  even 
greater  landholder,  the  state,  followed  the 
example  of  the  church  and  manumitted  to 
half-free  and  glebae  adscriptus  on  his  own 

'  Loning,  Geschichte  des  deutschen  Kirchenrechis ,  Vol.  II, 
p.  229.  On  the  subject  of  protection  on  the  part  of  the 
church  for  the  manumitted,  see.  p  232;  on  her  policy  in  this, 
see  pp.  233  ff. 


LIBERATION  109 

estates.  But  as  representative  of  the  nation 
and  holder  of  the  highest  Christian  authority 
within  the  state,  the  king  more  than  any  other 
person  helped  to  give  the  beneficent  teach- 
ings of  the  church  regarding  the  slave  the 
active  force  which  it  demanded.  The  king 
at  an  early  period  became  the  manumitter  on 
a  large  scale  and  awarded  persons  thus 
manumitted  a  substantial  protection  and 
support  such  as  no  one  else  could  or  would. 
Hence  the  king  and  the  freedman  manu- 
mitted through  the  participation  or  in  the 
presence  of  the  king  came  to  have  a  vital 
interest  in  one  another.  The  freedman's 
property  passed  by  death  to  the  king,  and 
his  wergeld  was  paid  to  the  king,  instead  of  to 
his  own  family,  since  he  was  not  yet  legally 
supposed  to  have  any  family.  On  the  other 
hand,  the  nation,'  when  it  liberated,  liberated 
completely.  But  it  did  this  only  in  excep- 
tional cases,  and  it  soon  yielded  the  honor 
of  performing  the  ceremony  to  the  king.     As 

'  As  represented  by  the  provincial  assembly  or  the  army 
or  even  the  assembly  of  the  hundred.  In  Iceland,  in  some 
places,  the  chief  priest,  go'di,  figured  as  manumitter,  in  England 
the  vicecomes. 


no      SLAVERY  IN  GERMANIC  SOCIETY 

a  matter  of  course,  however,  neither  church 
nor  king  nor  nation  could  manumit  without 
the  consent  or  the  desire  of  the  lord.  Private 
individuals,  again,  naturally  favored  the 
limited  rather  than  the  unlimited  manumis- 
sion. Yet  only  private  individuals,  by 
introducing  the  slave  into  a  family  of  free, 
could  offer  him  the  most  direct  and  simple 
way  of  becoming  a  freedman. 

Of  the  two,  complete  or  limited  freedom, 
I  hold  the  latter  to  be  the  original  and  older. 

Freedom  must  at  first  have  been  only 
conditional,  a  transient  thing  which  could 
be  given  and  taken  away,  having  almost 
the  character  of  an  experiment.  Not  that 
we  do  not  know  of  cases  of  complete  free- 
dom in  very  early  times,  but  the  whole  pro- 
ceeding was  so  extraordinary,  the  slave 
was  given  freedom  with  so  much  solemnity, 
his  position  seemed  so  new,  so  without  foun- 
dation in  his  previous  life,  that  such  freedom, 
however  great  a  boon,  must  have  impressed 
the  slave  himself  as  having  too  many  dangers 
in  its  wake  to  make  it  seem  safe  or  even  very 
desirable.     The  slave  had  no  kin  among  the 


LIBERATION  ill 

free,  could  expect  no  effective  help,  had  no 
established  relation  to  anyone  but  his  lord, 
the  king  not  being  the  natural  protector  of 
any  but  those  he  himself  liberated.  The 
freedman,  therefore,  was  like  a  lone  tree 
planted  on  a  rock  instead  of  in  the  shelter  of 
it,  exposed  to  the  fury  of  wind  and  weather. 
And  if  the  slave,  who  had  lived  in  the 
shadow  of  someone's  power  all  his  life, 
himself  may  have  desired  only  a  gradual 
rising  to  the  position  of  freedman,  it  must 
be  supposed  the  owner  had  much  less  objec- 
tion. The  slave,  therefore,  most  likely 
sought  the  position  of  litus  or  colonus  or  of 
aldius,  or  he  wished  attachment  to  the  lord's 
personal  service,  rather  than  absolute  inde- 
pendence.'   As  a  litiis  or  aldius  the  freedman 

'  It  is  certainly  reasonable  to  suppose  that  the  lord  was 
unwilling  to  grant  more,  and  the  slave  had  to  take  what  he 
could  get.  But  it  seems  equally  reasonable  that  the  slave 
who  had  reached  so  far  as  to  have  freedom  offered  him  should 
likewise  have  an  opportunity  to  choose  what  seemed  to  him 
safer,  knowing  the  prejudice  against  him.  The  Icelandic 
sagas  speak  often  of  slaves  who  have  freedom  offered  them  as 
ultimate  reward  for  some  very  perilous  undertaking,  but  the 
whole  tenor  of  the  northern  laws  point  to  this  as  being  an 
extraordinary^  occasion,  and  the  reward  therefore  uncommon. 
That  limited  freedom  should  precede  unlimited  seems  to  me, 
therefore,  most  natural  and  indisputable. 


112      SLAVERY  IN  GERMANIC  SOCIETY 

had  the  security  of  belonging  to  a  class 
which  the  law  recognized  and  protected. 
The  Anglo-Saxon  or  Saxon  or  Frisian  litus 
or  the  Langobardian  aldius  was  one  of  the 
nation  with  certain  guaranties,  whereas 
the  slave  had  none.  The  northern  frjdlsgjafi, 
who  had  been  given  his  freedom  but  still 
served  his  lord — these  and  others  indicate 
the  provisional  stages  which  perfectly  suited 
the  case  and  made  no  break  in  the  logical 
development.  Uncommon,  and  therefore  in- 
teresting mostly  as  an  anomaly,  is  the  libera- 
tion which  at  the  same  time  was  complete  and 
gratuitous.  In  most  cases,  however,  it  is 
merely  a  conjecture  whether  the  liberation 
was  gratuitous  or  not,  since  the  sources  give  us 
little  if  any  information  concerning  this  fact. 
It  is  well  to  begin  with  absolute  liberation, 
since  that  was  the  most  extraordinary. 
In  the  liberation  of  the  slave  the  lord  could 
have  had  but  two  objects  in  view — either 
his  own  benefit  or  that  of  the  slave.  If 
there  were  reasons  other  and  greater  than 
mere  material  benefit  why  the  manumission 
should  be  complete,  the  slave  would  be  given 


LIBERATION  I13 

freedom  accordingly.  Such  reasons  the 
church  gave  in  plenty  when  she  recom- 
mended liberation  of  a  fellow-being  as  a 
means  of  redemption  and  a  penance  for  sin. 
In  this  case  the  benefit  done  to  the  slave  was 
so  clearly  covered  by  the  benefit  to  the  lord 
that  it  seems  as  if  freedom  should  have  been 
both  complete  and  gratuitous.  And  yet 
equally  often  the  liberation  given  was  of  the 
most  limited  character.^  The  Germanic 
nations  from  the  earliest  time  knew  and 
practiced  a  complete  Uberation  without 
cost  to  anybody  but  the  lord.  This  occurred 
when  the  latter  wished  to  reward  for  long 
service  or  for  special  service  (e.g.,  saving  of 
master's  life).  The  nation  also  could  liber- 
ate upon  the  plea  of  extraordinary  merit. 
The  slave  then  was  freed  by  having  arms 
given  to  him  in  the  presence  of  everybody 

'  See  Swedish  law,  OG.  (in  Pappenheim,  Launegild  und 
Garethinx,  p.  41):  "Now  a  man  for  the  salvation  of  his  soul 
gives  a  slave  [amwpughtim]  freedom,  then  he  [the  lord]  shall 
both  answer  and  make  complaint  for  him  [the  slave]  until  he  is 
introduced  into  a  family,  and  until  then  he  can  give  no  oath 
nor  legally  make  a  purchase,  and  whatever  is  done  to  him 
shall  be  paid  for  as  if  it  were  done  to  a  slave  and  not  higher. 
§  I.  If  they  will  now  take  him  [the  slave]  into  a  family  this 
shall  take  place  with  the  permission  of  the  owner,"  etc. 


114      SLAVERY  IN  GERMANIC  SOCIETY 

at  the  public  meeting-place,  perhaps  in  ex- 
pectation of  a  hostile  attack  or  in  accord- 
ance with  the  law  passage:  "When  common 
danger  calls  all  (free  and  slave)  to  arms 
in  the  defense  of  the  country  the  slave  who 
succeeds  in  slaying  an  enemy  in  battle  is 
free."^  The  slave  also  acquired  complete 
freedom  by  being  introduced  into  the  com- 
munity of  free,  either  directly,  by  being  pre- 
sented as  free  by  free  in  the  pubhc  assembly, 
leida  i  log,""  or  by  being  introduced  into  a 
family  of  free;  which  again  might  have 
some  relation  to  the  possibility  of  the  slave- 
born  child  of  a  free  father  being  brought  up 
as  free  if  manumitted  by  the  father  before 
it  was  three  (or  fifteen)  years  old.-' 

These  methods  belong  to  the  oldest  and 
most  primitive  modes  of  giving  a  slave  his 
freedom.  The  slave  who  was  manumitted  on 
the  plea  of  extraordinary  merit  by  being 
given  arms  in  the  company  of  free,  and  the 

'  GJ)1.,  c.  312:  ".  .  .  .  latit  fara  heror  ok  stefnt  saman 
Jjegn  ok  ]?rael";  Saga  Olafs  hins  Hdga,  c.  129. 

*Finsen,  Grdgds,  Kgsh.,  c.  112:  "t)a  er  manne  frelse  gefit 
at  fullo  er  hann  er  i  log  leiddr." 

3G)>1.,  c.  57,  58.     See  further,  p.  156. 


LIBERATION  115 

child  who  was  Hberated  before  the  age  of 
three  (or  fifteen)  could  not  have  paid  any- 
thing for  their  freedom.  And  perhaps  it 
was  this  child  (or  boy)  also  who  was  later 
introduced  into  the  assembly  of  free  as  a 
further  security  of  his  personal  liberty. 
In  other  cases  of  complete  manumission  it  is 
far  less  certain  whether  the  act  was  without 
cost  to  the  slave. 

One  of  the  more  elaborate  methods  of 
manumitting  to  full  freedom  was  the  Eng- 
lish mode  of  transferring  the  slave  from  the 
hand  of  the  master  to  that  of  another  free- 
man (in  this  case  the  vicecomes),  who  manu- 
mitted, as  a  symbol  of  the  separation  from 
the  lord.  This  was  always  done  in  the 
presence  of  the  assembled  free.  The  liber- 
ated was  then  shown  the  open  road  and  door 
to  signify  that  nobody  could  restrain  him  and 
he  was  given  a  freeman's  sword  and  spear.' 
An  even  more  characteristic  ceremony  was 

'  Schmid,  William's  Laws,  Vol.  Ill,  p.  15:  "Si  qui  vero 
velit  seniim  suum  liberum  faccre,  tradat  eum  vicecomiti 
per  mamun  dextriim  in  pleno  comitatu,  quietum  ilium 
clamare  debet  a  jugo  servitutis  suae  per  manumissionem,  et 
ostendat  ei  liberas  via  et  portas  et  tradat  illi  libera  arma 
scilicet  lanceam  et  gladium;    deinde  liber  homo  eflScitur." 


ii6      SLAVERY  IN  GERMANIC  SOCIETY 

that  among  the  Langobards  by  which  the 
slave  amid  clashing  of  arms  in  the  assem- 
bly (gairpinx)  was  passed  from  the  hand  of 
the  lord  to  other  freemen  till  the  fourth  was 
reached,  who  then  declared  him  free  and 
completed  the  act  by  leading  him  to  a  cross- 
way,  bidding  him  be  at  liberty  to  go  where 
he  wished.  The  slave  was  then  given  arms 
and  was  henceforth  a  full-free  Langobard.' 

When  the  king  manumitted  as  the  lord  of 
his  own  estates  or  as  the  head  of  the  nation 
upon  the  plea  of  another,  he  might  do  so 
gratuitously  with  the  freedom  as  a  gift  to  the 
slave,  but  where  the  king  did  not  manumit 
his  own,  the  lord  of  the  slave  must  of  course 
have  agreed  to  have  the  manumission  thus 
performed.^  As  already  indicated,  the  king 
soon  stepped  in  and  became  the  chief  actor 
in  the  drama  in  which  formerly  the  free 
owner  and  the  public  assembly  played  the 
whole  part.  This  participation  of  the  king, 
however,  shows  to  my  mind  the  extraordinary 

'  Edict.  Rothar,  c.  224. 

^  The  lord  could  as  little  be  compelled  to  liberate  his  slave 
as  he  could  be  compelled  to  sell  him.  Leg.  Visig.,  v.  4,  17: 
"Nullus  servum  suum  vendat  invitus." 


LIBERATION  117 

nature  of  the  complete  manumission  (the 
king  could  not  take  part  in  anything  less), 
whether  it  was  gratuitous  or  not.  Thus 
among  the  Franks  the  slave  was  liberated 
before  the  assembled  freemen  by  the  king 
(originally  the  lord)  knocking  a  penny  from 
the  slave's  hand  so  that  it  flew  over  his 
head.  This  was  a  sign  that  his  services  and 
dues  were  dispensed  with.  The  king  like- 
wise liberated  by  command  or  by  letter 
which  made  symbolic  acts  and  ceremonies 
unnecessary;  but  this  has  less  interest  to  us, 
since  it  is  not  Germanic  in  character. 

The  church  was  not  the  first  in  chrono- 
logical order  to  benefit  the  slave,  but  when 
she  began,  she  was  at  least  the  most  constant 
and  untiring  advocate  of  the  betterment  of 
his  condition,  and  through  her  influence 
strongly  animated  both  nation  and  king  to 
follow  her  advice  in  this  direction.  The 
king  in  particular  became  the  willing  instru- 
ment of  her  teachings,  mainly  because  the 
dependence  of  the  manumitted  upon  royal 
protection  suited  his  own  absolute  tendencies. 
In  the  manumitted  the  king  found  the  same 
obedient  subject  and   follower   as   he   had 


ii8      SLAVERY  IN  GERMANIC  SOCIETY 

found  formerly  in  the  slave.  The  church 
in  imitation  of  the  Mosaic  law  succeeded  in 
introducing  paragraphs  into  some  of  the 
national  codes,  according  to  which  the  slave 
who  had  served  his  master  seven  years  was  to 
be  set  free/  From  the  nature  of  the  case 
(the  period  of  seven  years)  it  seems  more 
likely  that  this  rule  was  established  for  the 
purpose  of  benefiting  the  enslaved  freeman 
rather  than  the  slave  proper.  Likewise 
in  imitation  of  Mosaic  precepts  the  lord 
who  mutilated  his  slave  in  a  peculiar  fashion 
(eye  for  eye,  tooth  for  tooth)  or  who  com- 
pelled the  slave  to  work  on  Sundays  was 
obliged  to  give  him  his  freedom  in  return.^ 
Through  the  influence  of  the  church,  but 
upon  the  command  of  the  king,  the  pro- 
vincial laws  of  Norway  decreed  (eleventh 
century)  that  every  year  at  Christmastide  a 
slave  should  be  given  freedom  and  the 
different  districts  within  the  province  should 
contribute   to   that   effect. ^    To   the   same 

^Aelfred's  Laws,  Introd.,  p.   ii;    for  Swedish  laws,  see 
reference  in  Maurer,  Die  Freigelassenen,  p.  23,  n.  5. 

'  Aelfred's  Laws,  Introd.,  p.  20;  Ine's  Laws,  c.  3;   Cmd's 
Laws,  ii.  45,  3. 

3  GJ>1-,  cc.  4  and  5;  F})1.,  iii.  c.  19;  cf.  Aethelstan,  Prologue  i. 


LIBERATION  119 

influence  it  was  due  that  a  liberation  before 
the  altar  or  in  the  church  (with  the  Gospels 
placed  on  the  slave's  head)  had,  under  cer- 
tain circumstances,  the  same  effect  as  an 
announcement  in  the  assembly  of  the  people.^ 
'  The  church  set  slaves  free  with  the  purpose  of 
absorbing  them  into  the  body  of  clerics.^ 
Although  the  lower  orders  were  often  com- 
posed of  slaves  and  serfs  (in  case  of  patron- 
ized churches  these  were  still  in  the  power  of 
their  respective  lords),  no  one  could  be 
admitted  to  the  higher  orders  who  had  not 
been  liberated  first. ^  In  imitation  of  Roman 
custom,  the  church  liberated  slaves  of  her 

'  Gjjl.,  c.  61;  Wihlraed,  c.  8;  Luilpr.  Leges,  cc.  9,  23,  55, 
140;  Pact.  Allamann.,  2,  45. 

^  Condi  Emerit.,  a.  666,  c.  18:  "Proinde  instituit  haec 
sancta  synodus  ut  omnes  parochitani  presbyteri,  juxta  ut 
in  rebus  sibi  a  Deo  creditis  sentiunt  habere  virtutem  de 
ecclesiae  suae  familia  clericos  sibi  faciant."  Mansi,  Vol.  XI: 
"Jamdudum  ilia  pessima  consuetude  erat  ut  ex  vilissimis 
servis  fiebant  summi  pontifices";  Vita  Ludovic.  Imp.,  c.  20; 
Mon.  Germ.  Scriptores,  Vol.  II;  Concil.  Wormat.,  a.  868,  c.  40. 

^  Milman,  History  of  Latin  Christianity,  Vol.  II,  p.  549; 
Loning,  Vol.  II,  pp.  280  ff.;  Stutz,  Geschichte  des  Beneficial- 
wesens,  Vol.  I,  pp.  150  ff.,  201,  224,  n.  37;  Gu^rard,  Vol.  I, 
p.  350:  "Le  fiscalin  Ebbon  qui  devint  archeveque  de  Reims" 
{Car.  C.  epist.  ad  Nic.  I,  pap.);  "Fiscali  nostro  Fulconi 
abbati"  {Diplom  Car.  C,  a.  857). 


I20      SLAVERY  IN  GERMANIC  SOCIETY 

own  by  means  of  charts  (carta),  and  thereby, 
helped  to  make  this  method  more  general 
among  the  Germanic  nations.  But  in  most 
cases  the  church  liberated  only  to  half-free, 
because  she  needed  cheap  labor  and  a  large 
number  of  ready  hands. 

Thus  far  we  have  found  freedom  yielded, 
or  supposed  to  be  yielded,  without  any 
expense  to  the  slave.  The  lord  could  allow 
his  slave  to  be  bought  free  by  someone  else, 
but  it  must  always  have  been  in  the  power  of 
the  lord  to  limit  the  liberty  to  be  given  as 
well  as  the  payment.  A  mode  more  in  keep- 
ing with  the  natural  progress  of  things  was  to 
allow  the  slave  to  buy  his  freedom  by  his 
work,  or,  more  exactly,  by  the  product  of  his 
work,  and  to  make  the  completeness  of  free- 
dom at  first  dependent  upon  the  payment 
in  full  and  in  one  sum.  And  here  we  are 
again  confronted  by  the  question  of  the 
slave's  peculium  or  other  means  of  acquiring 
property  of  his  own,  without  which  it  seems 
impossible  that  he  could  pay  the  price  of 
liberty  demanded.  As  for  the  question 
whether  the  slave  might  not  draw  income 


LIBERATION  121 

from  sources  other  than  land,  it  is  indeed 
possible  and  under  circumstances  even  prob- 
able that  he  might  be  hired  out  at  some 
trade  or  work  for  himself  as  an  artisan;  but 
this  can  only  have  happened  in  the  large 
cities,  centers  of  commerce  on  the  coast,  or  on 
the  inland  routes,  where  alone  many  indus- 
tries could  thrive.  For  the  territory  of 
the  old  Roman  Gaul,  such  centers  might  not 
have  been  few  nor  far  between,  but  for  the 
bulk  of  the  Germanic  population  possession 
of  land  and  what  it  brought  was  the  natural 
source  of  wealth;  and  this  is  a  condition  of 
affairs  which  always  makes  movement  with- 
in society  and  changes  in  fortune  very  slow. 
Peculium  has  already  been  defined  as 
cattle  or  land,  or  where  this  failed,  the  oppor- 
tunity, in  form  of  extra  time  or  extra  occa- 
sion for  earning,  which  were  given  the  slave 
with  the  tacit  understanding  that  what  he 
thus  came  to  possess  would  be  his  own.  It 
seems  clear  that  the  peculium  was  in  the  first 
place  intended,  not  for  the  ultimate  redemp- 
tion of  the  slave,  but  for  the  maintenance 
of   his    family.     Whatever   it   might   yield 


122      SLAVERY  IN  GERMANIC  SOCIETY 

beyond  this  was  to  be  counted  as  pure  gain, 
and  might  help  the  slave  in  the  further 
improvement  of  his  circumstances,  e.g.,  in 
gaining  that  peculiar,  strictly  defined  rela- 
tion which  characterizes  serfdom;  or  where 
this  did  not  exist,  it  might  finally  assist  him 
in  buying  his  freedom.  That  at  first  the 
slave  was  hardly  able  to  make  more  than  a 
scant  Hving  out  of  his  tenure,  with  the  duties 
which  the  lord  imposed,  is  only  too  prob- 
able. The  phases  of  this  new  development 
are  like  most  of  what  concerns  the  slave,  as 
yet  largely  matter  of  conjecture;  but  it  seems 
perfectly  certain  that,  far  from  emanci- 
pating the  slave,  this  cultivating  a  bit  of 
land  for  his  own  good  tied  him  more  securely 
than  ever  before  to  the  interests  of  the  lord. 
The  personal  relation  was  changed,  but 
the  substantial  dependence  upon  each  other 
for  the  production  of  the  necessaries  of  life 
became  closer  than  ever.  The  slave  could 
not  live  as  a  freeman  on  his  bit  of  holding, 
paying  rent  and  being  under  no  further 
obHgation  to  the  lord.  He  was  to  a  higher 
degree  the  tool,  the  machine,  from  which 


LIBERATION  123 

was  sought  as  much  return  as  possible  and 
whose  efficiency  provided  the  labor  neces- 
sary to  keep  up  the  estate.  To  the  slave, 
again,  the  lord  remained  as  before  the  main 
source  of  bounty,  the  one  who  furnished  him 
with  an  outfit  and  the  means  of  living, 
however  scant,  and  the  master  whose  com- 
mands directed  his  actions.  It  was  thus 
that  the  slave  was  gradually  turned  from  a 
field  hand  ready  for  all  sorts  of  work  into 
the  regular  field  laborer,^  upon  whose  un- 
limited weekly  work  and  constant  services 
the  lord  depended  for  the  tillage  and  general 
maintenance  of  his  estate. 

The  question  how  soon  and  how  much  the 
slave  could  earn,  aside  from  his  dues,  his 
work,  and  the  maintenance  of  his  family, 
seems  wrapped  in  an  almost  impenetrable 
darkness.  And  it  is  vain  even  to  hope  for  a 
definite  solution  of  this  the  greatest  of  all 
problems  in  connection  with  the  slave. 
Perhaps  the  best  known  instance  of  depend- 
ent landholdings  of  all  kinds,  from  that  of 

'  In  conformity  with  the  now  almost  classical  presentation 
which  Seebohm  gives  in  his  English  Village  Community  of 
the  Saxon  peow  and  the  gebur. 


124      SLAVERY  IN  GERMANIC  SOCIETY 

the  needy  free  to  that  of  the  slave  just 
emerged  from  personal  bondage,  is  found  in 
the  Polyptique  de  Vahhe  Irminon,  which, 
although  from  the  ninth  century,  gives  the 
best  and  completest  picture  of  the  prevailing 
agrarian  conditions  of  the  Frankish  period. 
Here  three  kinds  of  landed  holdings  are 
spoken  of  as  existing  apparently  independ- 
ently of  each  other:  the  mansus  ingenuilis, 
the  mansus  lidilis,  and  the  mansus  servilis. 
On  these  are  settled  rather  indiscriminately 
free,  coloni,  liti,  and  servi,  a  circumstance 
tending  to  show  that  the  difference  among 
the  classes  was  not  very  great  and  that 
what  difference  there  was  originated  in  the 
character  of  the  customs  attached  to  the 
holding  rather  than  in  any  strong  personal 
distinction.  Even  as  early  as  this  the 
various  grades  of  tenants,  unfree,  half -free, 
free,  were  fast  melting  into  the  one  more  or 
less  solid  multitude  of  those  who  personally 
were  somewhat  free,  but  economically  decid- 
edly unfree;  a  mixed  condition  especially 
characteristic  of  the  later  Middle  Ages,  as 
seen  in  the  serfs,  villeins,  eigenleute,  horige, 


LIBERATION  125 

hintersassen,  etc.  In  the  ninth  century, 
however,  the  holdings  rather  than  the  status 
of  the  tenants  indicated  the  original  dis- 
tinction between  each,  a  distinction  which 
must  once  have  been  clearly  present  to  men's 
minds,  otherwise  the  three  kinds  of  holdings 
would  not  have  been  kept  apart  so  clearly 
during  the  centuries  following  the  German 
conquest. 

That  the  mansus  servilis  was  not  infre- 
quently parceled  out  into  halves  and  fourths 
speaks  of  a  more  intensive  cultivation,  but 
also  of  a  much  larger  original  holding  than 
it  would  be  thought  possible  a  slave  could 
profitably  manage.  There  was  accordingly 
more  or  less  irregularity  in  the  size  of  the 
slave's  holding,  and  also  in  his  dues,  owing 
most  likely  to  the  quality  of  the  land.'    But 

'  The  land  may  have  been  woodland  or  waste  to  be  cleared 
and  brought  into  cultivation  and  have  thus  consumed  a  long 
time  and  much  work  before  it  could  be  made  equal  to  other 
farms  of  smaller  size.  When  it  was  sufficiently  redeemed  to 
support  more  than  one  it  was  parceled  out  to  several.  In 
such  total  darkness  as  rests  over  the  economic  condition  of 
the  lower  and  lowest  classes  during  the  later  part  of  the 
Roman  period  and  the  beginnings  of  Germanic  settlements, 
only  the  simplest,  most  straightforward  reasoning  can  hope 
to  be  more  than  wild  speculation. 


126      SLAVERY  IN  GERMANIC  SOCIETY 

whether  whole,  halved,  or  quartered,  the 
slave's  holding  was  on  an  average  lo  acres  of 
tillable  land  and  meadow,  including  a  patch 
of  vineyard.  As  long  as  the  present  great 
uncertainty  prevails  in  regard  to  the  mean- 
ing of  the  surface  measurements  of  the  past, 
the  tables  worked  out  by  Guerard  in  his 
ProUgomenes^  will  remain  our  sole  assistance 
in  establishing  even  approximately  the  extent 
of  land  held  by  the  unfree  tenant.  The 
point  of  greatest  interest  here  is  the  oppor- 
tunity thus  given  to  obtain  perhaps  an  idea 
of  the  facilities  the  slave  had  to  earn  and 
save  something.  Perhaps  modern  France 
might  furnish  data  for  contrast  in  this  matter, 
if  not  for  comparison.  During  the  last 
thirty  years  by  far  the  greater  number  of 
French  peasants  have  been  settled  on  less 
than  13  acres  to  the  owner.  But  the 
frugality,  diligence,  and  industry  of  the 
French  peasant  are  proverbial,  and  besides 
running  his  farm,  whether  leased  or  owned, 
he  contrives  to  make  additional  income  by 
working  on  other  people's  farms  as  well.     His 

'  Forming  the  first  volume  of  the  Polyptique. 


LIBERATION  127 

food  and  clothing  cost  him  very  little,  and  his 
only  grievance  is  his  taxes.  He  is  therefore 
most  likely  able  to  make  his  living  and 
often  more  than  his  living  with  very  small 
resources  indeed. 

The  slave,  however,  although  in  posses- 
sion of  a  farm  with  soil  less  overtaxed  and, 
therefore,  presumably  more  even  in  its  pro- 
ductivity, and  although  he  demanded  in- 
finitely less  for  his  well-being,  worked  under 
difficulties  such  as  no  free  peasant  of  modern 
times  is  encumbered  with.  Besides,  he  was 
at  a  general  disadvantage,  since  his  interest 
was  a  very  unimportant  side  issue,  for  which 
he  was  obhged  to  steal  his  own  time,  as 
it  were,  instead  of  giving  it  openly.  The 
natural  result  was  that  the  slave,  when  all 
dues  were  paid,  w^ould  make  either  a  very 
sparse  living  or  none  at  all,  thus  constantly 
falhng  back  upon  the  lord's  charity.  This 
again  must  have  led  to  a  gradual  regula- 
tion of  weekly  service  so  that  the  unfree 
tenant  should  have  more  time  for  himself 
and  could  come  to  pay  his  dues  properly. 
And  here  the  church  very  likely  was  the  one 


128      SLAVERY  IN  GERMANIC  SOCIETY 

to  set  an  example.  The  Lex  Bajuwariorum" 
and  Leges  Alamannoruni^  give  the  best 
known  instance;  according  to  which  the 
slave,  that  he  might  not  be  oppressed 
beyond  his  endurance,  was  to  work  three 
days  in  the  week  for  the  lord,  and  his  services 
and  contributions  were  especially  enumer- 
ated. But,  even  so,  in  a  great  many  in- 
stances the  work  of  the  slave  was  unlimited, 
and  he  was  expected  to  do  as  much  as  the 
lord  needed  or  wanted  to  be  done.  For 
the  servus  of  the  Polyptique  and  other 
records  of  the  time,  although  not  identical 
with  the  servus  of  the  Lex  Salica  and  other 
laws,  is  not  a  serf,  but  still  a  slave;  and  it  is 
useless  to  maintain  that  the  slave  when 
settled  on  land  ceased  to  exist  as  such.  The 
term  mansus  servilis  could  not  have  come 
into  existence  if  it  had  not  been  the  holding 
of  a  slave  and  acquired  only  gradually  a 
different  meaning.  The  original  arbitrariness 
of  the  relation  between  master  and  slave  still 
clung  to  it  even  after  slavery  became  real 
instead  of  personal.     It  is  obvious  in  the 

'  C.  14,  6.  *  C.  22  (Codd.  A.);  c.  22  (Codd.  B.). 


LIBERATION  129 

relation  between  lord  and  serf,  since  the  latter 
was  still  at  the  lord's  bidding  even  beyond 
his  customary  duties.  The  starting-point  of 
both  relations  is  by  this  clearly  indicated. 
The  servus,  therefore,  in  the  great  majority 
of  cases,  gave  the  lord  more  or  less  unlimited 
service  in  the  form  of  corvee,  manoperas,  car- 
r operas  {hand-  und  spamtdienste),  in  the 
plowing  of  fields  at  certain  times,  in  work  in 
the  vineyard,  watch  service,  the  cutting 
of  trees,  and  whatever  else  might  be  de- 
manded; his  duties  varying  with  locahties 
and  customs  of  the  estate  or  the  obligations 
inherent  in  the  nature  of  his  holduig.  He 
paid  his  tribute  in  equally  various  ways, 
in  sheep,  poultry,  wine,  shingles,  axes,  iron, 
or  whatever  necessities  were  assigned  to  his 
farm  as  its  share.  No  doubt  all  this  was  the 
result  of  a  slow  accumulation  of  wants  and 
of  the  growing  prosperity  as  the  country 
became  cleared  and  built  up.  But  the 
servus  was  evidently  kept  closely  watched 
and  his  obligations  imperceptibly  increased 
till  he  had  just  as  much  as  he  could  bear. 
The  slave  just  settled  represented  but  the 


I30      SLAVERY  IN  GERMANIC  SOCIETY 

beginning  of  these  wants.  As  he  was  new 
and  unaccustomed  to  thrift  there  was  per- 
haps little  to  be  gained  from  overtaxing  him. 
To  the  servus  the  chance  for  accumulating 
anything  beyond  the  necessary  depended  to  a 
large  extent  upon  whether  he  had  oppor- 
tunity for  trade,  whether  a  river  was  near, 
or  a  city  or  a  market  place;  but  it  depended 
even  more  upon  the  character  of  the  soil,  the 
size  of  his  family,  the  nature  of  his  dues,  and 
whether  the  general  prosperity  of  the  domain 
was  such  that  the  work  exacted  was  not  too 
heavy.  With  a  household  of  three  to  five 
children,  such  as  the  Polyptique  shows,  the 
duties  might  be  distributed,  but  the  tenure 
was  after  all  only  one,  and  the  greater  the 
number  to  draw  sustenance  from  its  pro- 
ductive power,  the  smaller  eventually  the 
chance  for  savings.  In  case  of  a  good  harvest 
the  surplus  may  often  have  been  consider- 
able; in  drought  or  other  misfortune  famine 
may  equally  often  have  been  the  unavoidable 
result.  The  attempt  to  make  the  slave  pro- 
vide for  himself  was  doubtless  often  a  mere 
experiment  that  failed.  A  generation  may 
have  been  necessary  to  teach  him  economy. 


LIBERATION  131 

But  inasmuch  as  the  slave,  whatever  his 
capacity,  must  always  have  retained  the 
power  to  receive  and  keep  gifts,'  he  had 
always  opportunity  for  accumulating  some- 
thing toward  his  liberation.  To  say  any- 
thing more  definite  is  unfortunately  out  of 
the  question  at  the  present  stage  of  inquiry. 
I  am  well  aware  of  the  fact  that  the  price 
of  liberty  is  mentioned  only  in  the  rarest 
instances.  In  northern  laws  the  fee  is  stipu- 
lated.^   Other   laws    are    mute.^    But    this 

'Mentioned  incidentally,  Ltiitpr.,  c.  113. 

^  Six  weighed  ounces  (Norweg.)  =  4 •  2  sol.:  (GJ>1.,  c.  62); 
but  it  is  reasonable  to  suppose  that  it  must  have  been  more 
("leysings  aura"  suggests  something  different  from  "Jjraell 
aeSa  amb6tt  verSaura  sina";  cf.  G\)\.,  c.  61);  2  weighed 
marks  (Swed.)  =  i2  sol.  (Amira,  Vol.  I,  p.  445);  but  in  this 
case  it  is  evidently  a  freeman  enslaved  for  whom  another 
pays,  and  it  does  not  prove  that  this  is  what  a  slave  of  long 
standing  would  be  expected  to  pay  for  himself.  By  the  same 
author  we  are  told  on  p.  478:  3  weighed  marks  =  i8  sol.(?). 
None  of  these,  however,  quite  fits  our  case. 

3  The  throwing  of  the  denar  is  symbolic,  and  cannot  have 
represented  the  actual  fee.  The  old  documents  speak 
repeatedly  of  4  den.  as  the  symbolic  indication  of  entering 
the  state  of  bondage,  but  where  the  redemption  from  slavery 
occurs,  2  den.  (sometimes  more)  are  mentioned  as  a  census 
imposed  upon  the  freed  person.  There  is  something  distinctly 
Roman  in  this  {Coll.  Sang.,  16;  Form.  Augen.  Coll.  B.,  21, 
Extrav.,  i.  19,  20).  See  also  Loersch  and  Schroder,  Nos. 
SI,  71. 


132      SLAVERY  IN  GERMANIC  SOCIETY 

cannot  mean  that  liberation  in  all  such  cases 
was  gratuitous,  but  rather  that  the  slave 
paid  with  such  amount  as  would  correspond 
somewhat  to  the  benefaction  bestowed  upon 
him,  and  the  whole  matter  was  of  so  small 
an  importance  that  the  laws  found  no  cause 
for  special  mention.  In  Norse  laws,  too, 
liberty  can  be  given  without  payment,  com- 
plete and  gratuitous/ 

The  more  regular  method  of  liberation, 
however,  according  to  these  laws,  was  neither 
always  complete  nor  gratuitous,  and  ex- 
pressed the  relation  between  master  and  slave 
very  clearly  indeed.  Liberation  by  this 
method  was  represented  by  two  separate 
stages:  first,  a  partial  gift,  and  next  a 
purchase  on  the  part  of  the  slave.  These 
events  may  well  have  been  removed  from 
each  other  by  several  years,  or  both  may  not 
have  happened  in  a  given  case.  The  gift  of 
freedom  might  take  place  in  church  by  laying 
the  Gospels  on  the  slave's  head  or  by  seating 
him,  while  the  formula  was  spoken,  on  the 
"chest  of  arms,"  which  was  below  the  seat 

'  (" Skattalaust  oc  skulda"),  GJjI.,  c.  6i. 


LIBERATION  133 

of  the  head  of  the  family,  or  even  in  this  very 
seat  itself.' 

If  he  remained  only  thus  partially  liber- 
ated, he  enjoyed  no  full  freedom;  he  was 
henceforth  a  freedman  of  inferior  char- 
acter, a  frjdlsgjafi,''  under  numerous  obliga- 
tions to  his  master.  He  could  have  more 
perfect  freedom  only  by  paying  the  stipulated 
fee  and  holding  what  was  called  his  liberation 
beer.^    This  was  a  festivity  prepared  by  the 

'  G)j1.,  c.  61:  "Now  the  man  leads  his  thrall  to  church,  or 
to  seat  on  the  chest,  and  gives  him  freedom,"  etc. 

'  To  whom  freedotn  was  given  as  distinct  from  the  one  who 
redeemed  himself,  {leysingr,  although  the  term  leysingr  is 
sometimes  used  for  both  kinds  of  freedmen). 

3  GJ)1.,  c.  62:  "Now  [if]  the  [would-be]  freedman  [leysingr] 
wishes  full  freedom  in  regard  to  what  he  buys  and  whom  he 
marries  [mo  prymslir],  then  he  shall  make  his  liberation  beer, 
beer  of  at  least  three  bushels  [of  malt],  and  bid  to  it  his  lord 
with  witnesses,  and  bid  not  his  antagonist,  and  seat  him  [the 
lord]  in  the  high  seat,  and  lay  six  aurar  in  the  scales  the  first 
evening,  and  offer  him  leysings  aurar.  Now  if  he  [the  lord] 
accepts  them,  it  is  well,  but  if  he  gives  them  back,  then  it  is 
as  if  they  were  paid.  But  if  he  [the  lord]  will  not  come,  then 
the  leysingr  shall  lead  [forth]  his  witnesses  that  he  invited 
him  [the  lord]  to  the  thing,  and  let  the  high  seat  stand  empty, 
and  lay  six  aurar  in  the  scales,  and  invite  him  [the  lord]  to  be 
seated  the  first  evening  [as  if  he  were  there],  that  is  called 
leysings  aurar.  But  if  he  [the  lord]  has  someone  [there] 
to  receive  the  offer  [in  his  stead]  it  is  well,  but  if  no  one  receives 


134      SLAVERY  IN  GERMANIC  SOCIETY 

(manumitted)  slave  to  celebrate  and  at  the 
same  time  make  public  his  release.  Here 
in  the  presence  of  company  sufficiently 
numerous  to  witness  the  act  he  was  to  offer 
the  lawfully  demanded  fee,  which,  in  this 
case,  must  be  nominal,  since  it  represented 
only  one-fourth  of  what  was  looked  upon  as 
his  usual  market  value,  i.e.,  6  aurar  as  against 
3  mark  =  24  aurar  =  18  sol.'  According  to 
another  provincial  law,  a  ram  was  to  be 
slaughtered  at  the  liberation  beer,  its  head 
cut  off  by  a  freeman,  and  from  its  neck  was 
to  be  taken  the  so-called  halslausn;  in 
other  words,  the  liberation  fee,  perhaps  hung 
in  a  bag  around  the  ram's  neck  (Maurer)  as 
a  symbol  of  the  final  deliverance  of  the  neck 
of  the  slave  from  the  yoke  of  thraldom  and 
the  fear  of  death  to  which  he  was  constantly 
subject."    The  act  was  afterward  announced 

it,  then  he  [the  ley  sin  gr]  shall  keep  the  money  till  the  next 
day  and  offer  it  to  him  at  the  [midday  ?]  meal.  But  if  the  man 
does  not  accept  it  then  he  [the  leysingr]  shall  have  it  and  keep 
it  tiU  he  claims  it  to  whom  it  belongs;  then  the  liberation 
beer  is  held  fully. 

»  GJjI.,  c.  62;   Y\)\.,  ix.  c.  12;  Bjark.,  iii.  c.  i66. 

^F}j1.,  ix.  c.  12.  The  slaughter  of  a  ram  may  also  be 
explained  as  the  survival  of  a  former  sacrificial  act,  thus  sig- 


LIBERATION  135 

at  the  assembly,  in  order  that  all  might 
know  it  and  no  complications  arise.  This 
announcement  was  to  be  repeated  twice 
during  twenty  years,  by  which  time  it  was 
supposed  that  nobody  would  endeavor  to 
contest  the  right  of  the  liberated.  The 
freedman  was  henceforth  leysingr,  not  frjdls- 
gjafi  any  longer.^  The  slave  whose  right  to 
choose  his  place  of  living,  to  marry,  and  to 
manage  his  property  had  not  been  contested 
during  twenty  years  was  to  be  looked  upon  as 
free."^ 

nifying  the  solemnity  of  the  occasion.  Maurer,  Bekehrung, 
Vol.  II,  p.  199,  n.  44,  was  the  first  to  call  attention  to  this 
possible  explanation. 

'  FJjI.,  ix.  c.  12. 

^  GJjl.,  cc.  61  and  66.  To  me  this  case  looks  like  that  of  a 
runaway  slave  who  had  fled  to  the  woods  of  another  folkland, 
the  mountains  cutting  off  pursuit,  where  he  succeeds  in  avoid- 
ing discovery,  living  as  hunter  or  coal-burner  or  what  not,  and 
maintaining  his  liberty  by  his  very  isolation.  Here  he  may 
have  cleared  land  and  established  an  existence.  Some  of  the 
homes  on  the  very  edge  of  the  mountain  ridge,  which  are 
seen  from  the  Norwegian  valleys,  must  originally  have  been 
built  by  some  desperate  individuals,  thieves,  outlaws  indeed, 
who  had  fled  "justice,"  and  maintained  themselves  where 
they  could  be  least  molested.  In  this  case  freedom  was 
slower  in  coming  than  to  the  slave  who  hid  in  cities,  and  who, 
when  the  year  was  over,  was  free  (Schmid,  William's  Laws, 
Vol.  Ill,  c.  16). 


136      SLAVERY  IN    GERMANIC  SOCIETY 

The  slave,  however,  to  whom  the  king 
awarded  liberty  had  no  need  of  any  libera- 
tion beer.^  Likewise,  the  property  given 
the  liberated  by  the  king  became  a  family 
possession  with  the  quality  of  inherited 
estate.^  The  slave  to  whom  the  folkland 
yielded  liberty  was  free  from  serving  in  the 
army.3 

If,  in  these  cases,  according  to  our  sources, 
the  liberated  acquired  full  liberty  and  equal 
rank  with  the  free,  it  was  because  the  neces- 
sary formalities  had  all  been  attended  to: 
the  private  event  had  been  completed 
by  the  pubHc.  The  natural  conclusion  seems 
to  be,  therefore,  that  the  less  solemn  and 
circumstantial,  the  more  private  in  nature 
the  act  of  liberation  was,  the  more  it  had 
the  character  of  an  agreement  between  slave 
and  master  with  no  strong  binding  power  for 
the  future.  Only  when  it  assumed  the  char- 
acter of  a  definite  stipulation,  accompanied 
by  the  necessary  publicity,  or  when  the 
whole  community  had  been  called  upon  to 
witness,  and,  so  to  speak,  sanction  the  act, 

'  GH-,  c.  61.        '  G\>\.,  cc.  129,  270.        3  g)j1.,  c.  298. 


LIBERATION  137 

did  it  have  binding  force  for  all  parties  con- 
cerned. 

When  liberation  by  means  of  chart  came 
to  supersede  the  spoken  word,  the  semi- 
private  nature  of  the  letter,  as  well  as  the 
possibility  of  stipulating  exactly  the  limits 
of  the  freedom  given,  made  this  form  the 
commonest  in  manumission  to  inferior  rights, 
to  tabularius,  chartularius,  etc.  But  these 
kinds  are  characteristic  of  Romanic,  rather 
than  Germanic,  customs.  In  the  North 
the  reason  for  making  a  slave  a  frjdlsgjafi 
instead  of  a  leysingr  was  either  the  master's 
lack  of  desire  to  go  farther  in  liberality,  or 
the  failing  of  the  slave  to  satisfy  the  master's 
demands.  That  the  master  was  not  always 
to  be  blamed  for  tardiness  in  yielding  to  the 
desires  of  the  slave  for  freedom  can  easily 
be  understood  when  it  is  seen  how  little 
the  liberation  fee  after  all  could  recompense 
the  lord  for  loss  of  absolute  property  right.' 

'  In  answer  to  the  question  why  the  liberation  fee  was  so 
small,  it  must  be  pointed  out  that,  inasmuch  as  money  was 
exceedingly  scarce  (the  fact  of  its  having  a  value  of  10:1  of 
what  it  has  today  points  to  this) ,  six  aurar  in  weighed  and  pure 
silver  was  a  sum  of  great  magnitude  to  the  slave  and  a  not 


138      SLAVERY  IN  GERMANIC  SOCIETY 

It  seems  to  be  in  recognition  of  how  insuffi- 
cient to  the  lord  the  liberation  fee  in  many 
cases  really  was  that  the  Norwegian  pro- 
vincial laws  decreed  that  the  slave  who  had 
already  bought  his  freedom  should,  never- 
theless, work  a  year  for  his  master.^  Just 
as  there  were  reasons  why  a  liberation  which 
was  complete  should  also  be  gratuitous,  so 
there  were  reasons  why  a  manumission  which 
was  gratuitous  should  be  limited  in  nature. 
An  instance  is  found  in  the  liberation  accord- 
ing to  Swedish  laws  when  the  lord  gave  a 
slave  (anndpugher)  freedom,  but  remained 
responsible  for  him  in  every  way,  thus  leav- 

unwelcome  increase  to  the  funds  of  the  lord.  At  a  time  when 
it  must  be  supposed  that  large  fines  were  usually  paid  in  kind, 
in  woven  goods,  or  in  cattle  (GJjI.,  c.  223),  the  ready  money 
brought  together  by  the  slave  or  the  freedman  had  a  worth 
beyond  its  actual  value,  and  was  not  altogether  undeserving 
of  its  name  of  liberation  fee.  Besides,  this  fee  was  not,  and 
could  not  be,  a  compensation  for  future  service,  but  for 
alimentation  in  the  past,  which  the  lord  looked  upon  as  an 
outlay  that  he  did  not  wish  entirely  thrown  away.  This 
alimentation  the  freedman  settled  on  land  might  henceforth 
furnish  himself,  the  produce  yielded  paid  for  the  land,  and  the 
two  items  of  expenditure  were  thus  made  to  balance  more 
evenly. 

'  GJ)!.,  c.  61. 


LIBERATION  139 

ing  his  position  otherwise  no  better  than  it 
was  before.^  And  here  we  meet  those  stages 
of  conditional  freedom  which  came  earhest 
and  lasted  longest,  a  course  of  gradual  and 
painfully  restricted  improvement. 

The  best  representative  of  the  earhest 
forms  of  liberation,  and  the  lowest  stage  of 
freedom  is  the  freedman  just  mentioned, 
whose  position  was  not  much  better  than 
that  of  a  slave  until  he  was  introduced  into  a 
family.  Indeed,  he  appears  so  distinctly 
typical  that  from  the  point  of  view  of  this 
lowest  type  it  seems  worth  while  to  consider 
such  apparently  different  cases  as  that  of  the 
Langobardian  aldius  and  the  already  men- 
tioned Hi^OTwegianfrjdlsgjafi. 

The  Langobardian  aldius  was  liberated 
apparently  without  any  formalities  what- 
soever; he  was  attached  to  the  soil;  he  could 
not  leave  the  lord's  domain  without  drawing 
down  upon  himself  punishment,  as  did  the 
slave.  The  relation  between  the  lord  and 
the  aldius  was  regulated.     The  patron  gave 

'O.  G.  Aerfb.,  20;  Pappenheim,  p.  41,  translated  on 
p.  234,  n.  2. 


I40      SLAVERY  IN  GERMANIC  SOCIETY 

the  freedman  protection,  and  the  freedman 
owed  him  duties.  The  aldius  could  have 
property,  but  he  could  not  dispose  of  it; 
the  patron  was  responsible  for  all  his  acts; 
for  satisfaction  the  law  turned  to  the  lord, 
not  to  the  freedman.  In  the  eyes  of  the  law 
the  aldius  was  but  an  instrument  in  the 
hand  of  the  free.  In  all  these  particulars 
the  difference  between  the  slave  and  the 
aldius  is  almost  nil.  The  aldius  could  have 
a  family,  but  had  no  right  to  marry  without 
his  lord's  consent.  He,  however,  enjoyed 
the  protection  of  the  law  to  a  certain  extent, 
since  he  was  regarded  as  belonging  to  a 
particular  class  instead  of  being  a  nonde- 
script and  part  of  an  inventory.^ 

A  little  better  than  the  aldius,  but  sup- 
plementing our  idea  of  his  state  quite 
wonderfully,  was  the  Norwegian  frjdlsgjafi, 
who  was  as  yet  free  only  in  an  informal  way, 
without  the  payment  of  fee,  and  also  without 
the  liberation  beer.''    The  law  looked  upon 

^  Roth.,  cc.  258,  235,  216,  219;  Grhnvald,  c.  i;  Luitpr., 
cc.  68,  139,  143- 

'  He  had  no  free  disposition  of  what  he  possessed,  or  at 
least  only  to  a  trifling  amount  (one  ortug) ;  (cf .  Guerard,  Vol.  I, 


LIBERATION  141 

him  as  in  debt  to  the  lord  for  the  liberation 
fee,  and  allowed  the  latter  without  fine  to 
force  him  to  pay  even  with  blows.'  Very 
likely  the  lord  settled  this  freedman  on  land, 
for  how  was  he  otherwise  to  maintain  him- 
self ?  Thus  the  dependent  relation  became 
further  estabHshed.  For  this  land  he  paid 
some  sort  of  tribute,  and  was  otherwise  left 
to  shift  for  himself.  Furthermore,  he  was 
to  help  to  support  the  lord  in  case  the  latter 
became  destitute.^  In  the  same  way  the 
destitute  freedman  could  call  upon  the  lord 
for  assistance.  The  lord  was  his  natural 
mainstay,  and  obUged  to  support  him  and  his 
family ;  but  this  duty  on  the  part  of  the  lord 
was  by  no  means  unlimited ;  he  could  under 

p.  306,  n.  12,  where  in  the  thirteenth  century  serfs  could  not 
bequeath  to  a  value  of  more  than  5  sous):  (G}j1.,  c.  56).  He 
could  not  marry  without  his  lord's  consent  (0)^1.,  c.  63). 
He  had  only  limited  right  to  move  about.  Neither  could  he 
settle  where  he  pleased.  If  he  ran  away  he  became  a  slave 
(GJjL,  cc.  61,  67).  His  children  could  not  inherit  from  him 
nor  he  from  them;  they  belonged  to  the  lord's  household,  and 
he  was  himself  subject  to  the  mundiitm  of  the  lord  {G\>\.,  cc.  65, 
296;    FJ)1.,  cc.  10,  13). 

'  G])\.,  c.  61. 

^  G\>\.,  c.  129.  Compare  Maurer's  explanation  of  what  is 
meant  by  fostrlaun  on  p.  68  of  his  treatise. 


142      SLAVERY  IN  GERMANIC  SOCIETY 

circumstances  relieve  himseK  of  the  whole 
burden  by  making  the  freedman  and  his 
"gang"  starve  to  death  till  only  one  was  left 
(graf gangsmen)  ."^  Those  who  had  complaint 
against  the  freedman  or  a  demand  for  com- 
pensation from  him  turned  to  the  lord  for 
satisfaction.^ 

The  moral  attitude  of  the  frjdlsgjafi  toward 
the  liberator  the  laws  characterize  by  the 
name  prymslir,  which  means  "respectful  be- 
havior," and  they  even  go  so  far  as  to  specify 
how  this  respectful  behavior  was  to  be 
understood.  The  freedman  was  not  to 
attempt  to  rob  his  master  of  property  nor  to 
sit  in  judgment  against  him,  never  swell  the 
host  of  his  enemies,  nor  bear  any  witness 
against  him,  nor  be  on  the  side  of  the  lord's 
betters  unless  permitted  to  do  so — regula- 
tions of  an  almost  feudal  character  which 
throw  strange  light  upon  the  possibilities 

'  "The  barbarous  custom  of  an  almost  forgotten  past." 
A  grave  was  to  be  provided  for  them  in  the  churchyard,  and 
there  they  were  to  be  put  to  die;  the  lord,  however,  was  to 
take  out  of  the  grave  the  survivor  and  bring  him  up  (GJjI., 
c.  63).     See  the  whole  complicated  matter  in  Maurer,  pp.  69-74. 

'Wilda,  p.  215. 


LIBERATION  143 

after  all  open  to  such  a  supposedly  inferior 
being.  If  the  freedman  committed  any  of 
these  disloyal  acts  he  was  to  be  reduced 
to  his  former  place  and  have  all  his  property 
forfeited/ 

It  was  possible,  however,  for  the  frjdlsgjafi 
to  buy  himself  free  from  the  prymslir,  and 
thus  be  like  the  freedman  of  higher  order,  the 
leysingr.  Yet  the  leysingr  was  not  relieved 
from   some   obligation   toward   his   patron, 

'  GIjI.,  c.  66:  "The  freedman  shall  show  consideration 
[have  pyrmslir]  toward  his  lord.  He  shall  not  plot  for  the 
puipose  of  depriving  him  of  his  property  nor  of  his  life;  nor 
shall  he  be  against  him  in  the  court  unless  he  has  his  own  case 
to  defend.  Then  he  shall  uphold  it  against  him  as  against 
other  men,  and  not  attempt  to  measure  himself  with  him  in 
words,  and  wield  neither  sword  nor  spear  [point  and  edge] 
against  him,  and  not  swell  the  host  of  his  enemies,  and  not 
bear  witness  against  him,  or  aid  those  who  are  mightier  than 
he  [the  lord],  unless  he  [the  freedman]  has  his  permission,  and 
not  join  a  court  hostile  to  him.  And  if  he  does  any  of  these 
things  he  shall  go  back  into  the  place  he  was  in  before  and 
redeem  himself  from  it  with  the  value  of  it,  and  he  shall  also 
have  lost  his  property.  Two  shall  fulfil  these  obligations, 
father  and  son,  against  the  other  two  [father  and  son  on  the 
other  side].  If  his  [the  freedman's]  son  commits  any  such 
fault  he  shall  pay  the  lord  the  value  of  it,  the  same  as  did  his  ■ 
father."  The  attitude  of  the  vassal  toward  his  seigneur  is 
here  forestalled  and  the  position  of  the  frjdlsgjafi  is  not  very 
different  either  from  what  little  we  know  about  the  Roman 
client  of  earlier  times. 


144      SLAVERY  IN  GERMANIC  SOCIETY 

although  he  had  bought  off  the  most  oppres- 
sive. He  had  to  expect  to  aid  the  lord  in  an 
emergency,  to  support  him  financially,  if  he 
was  in  need.  But  he  was  called  vdnarman 
rather  thscn  prymslirman,  i.e.,  his  duties  were 
secondary  rather  than  primary,  he  was  called 
upon  only  in  case  of  utmost  necessity,  was  not 
at  the  beck  and  call  of  the  patron.  He  had 
the  right  to  marry/  to  come  and  go  without 
the  permission  of  the  lord,  and  to  dispose 
of  his  property,  and  his  children  could  inherit 
it.*  He,  too,  must  have  been  settled  on  land^ 
as  a  means  of  maintaining  himself,  unless 
he  already  possessed  land  of  his  own,  which, 
of  course,  was  not  impossible."* 

The  king,  the  nation,  or  the  private 
individual  must  have  endowed  the  freedman 
with  property  at  the  liberation  to  make  him 
able  to  take  care  of  himself.  Public  land 
must  have  been  given  or  opportunity  opened 
up  to  him  of  getting  land  by  clearing  it. 

'G))l.,  cc.  6i,  62. 

^  G1>1.,  c.  66.  The  lord  inherits  from  the  freedman  of 
higher  grade  in  the  ninth  degree,  while  in  the  tenth  the  king 
is  the  heir. — GJ>1.,  c.  106;  FJjL,  ix.  c.  11;  Maurer,  pp.  55-56. 

3  Eyrbyggja  Saga,  c.  32,  2.  ■»  G]>\.,  c.  91. 


LIBERATION  145 

That  in  case  of  settlement  of  a  new  country 
the  freedman  and  even  the  slave  had  a 
handsome  opportunity,  if  not  altogether 
a  golden  one,  seems  indicated  by  the  Ice- 
landic sagas. ^  As  such  settler  the  freedman 
of  higher  grade  must  have  enjoyed  certain 
privileges,  have  been  a  tenant  in  fact,  whose 
rent  and  dues  were  not  heavy.  But  if  one 
remembers  the  general  situation  of  the  tenant 
in  a  country  with  such  small  agricultural 
resources  as  exist  even  today  in  Norway 
and  the  possibility  for  only  sheep  culture 
in  Iceland,  the  chances  for  any  sudden  or 
great  economic  independence  on  the  part 
even  of  the  best  situated  freedmen  seems 
rather  poor;  although  the  sagas  give  in- 
stances such  as  referred  to  in  the  notes. 

Between  the  northern  frjdlsgjafi  and  the 
leysingr  in  regard  to  rights  and  well-being 
stands  the  litus  of  Continental  origin,  who 
seems  sometimes  to  have  been  under  a 
severer  tutelage  of  the  lord  than  might  be 
expected  in  a  freedman  liberated  to  the  degree 

'  Laxdoela  Saga,  cc.  xxv.  4;  vi.  8-9;  Eyrbyggja  Saga, 
cc.  8,  4;   30,  2;   31,  5. 


146      SLAVERY  IN  GERMANIC  SOCIETY 

of  litus.  There  must  have  been  some  differ- 
ence between  the  litus  of  early  Germanic 
origin  and  the  one  which  figures  later. 
Where  the  old  litus  remained  in  existence, 
as  he  did  among  the  Saxons  and  the  Frisians, 
he  seems  accorded  very  few  rights  indeed, 
his  greatest  privilege  being  his  family  rela- 
tions and  his  distinction  as  belonging  to  a 
class.  But  the  litus  is  best  studied  in  con- 
nection with  the  development  of  serfdom. 

The  liberation  by  means  of  chart  instead 
of  by  verbal  grant  (the  chart  not  being 
revocable,  as  was  the  verbal  manumission), 
which  became  so  general  during  the  centuries 
following  the  eighth  and  ninth,  helped  to 
create  a  mass  of  half-free  who  existed  for 
nothing  so  much  as  to  recruit  the  dwindling 
coloni  (tribtitarii)  and  liti,"^  although  they 
bear  other  names.  These  had  as  yet  no 
special  class  privileges,  the  nature  of  their 
freedom  was  indicated  in  the  chart,  and 
according  to  this  they  ranked  higher  or  lower 
within  the  general  sphere  of  their  liberties 

'  A  tendency  which,  on  the  Continent,  liberation  had 
{Lex  Rib.,  tit.  Ixii.  i). 


LIBERATION  147 

(tabularius,  chartularius) .  Their  position  is 
also  largely  determined  by  the  position  of 
the  patron,  whether  they  are  homines  regit 
or  ecclesiasticii.  The  hberated  body  servant 
or  unfree  (half -free)  soldier  belonged  to  their 
rank.  They  presented  a  new  stage  in  the 
development  of  the  unfree,  that  of  serfdom, 
in  all  its  numerous  shadings  and  rubrics 
of  dependence  and  semi-hberty. 

The  freedman  of  whatever  kind  acquired 
what  he  had  not  before — a  legally  fixed 
value. ^  For  the  aldius  it  was  one-third""  of 
that  of  a  freeman,  for  the  litus  it  was  one- 
half.3  The  hberated  Swedish  annbpugher 
who  was  not  yet  introduced  into  the  family, 
had  only  the  value  of  the  slave,  the  frjdlsgjafi, 
and  the  leysingr  generally  the  same  (accord- 
ing to  the  laws  one-half  [GJ7I.]  or  one-third 
[FJ7I.]  of  a  freeman). 

Among  the  freedmen  not  yet  mentioned, 
the  Langobardian  full-free  but  not  dmund^ 

'  GJjL,  cc.  91,  198,  200;  Lex  Sal.,  tit.  xlii.  4  Qitus). 
^Or  a  trifle  more;    60  sol.  vs.  150  (or  more);    cf.  Luitpr., 
c.  62. 

3  ICX5  sol.  {Lex  Sal.,  tit.  xlii.  4;  Lex  Fris.,  tit.  i.  4,  7,  10). 
<  Roth.,  c.  224. 


148      SLAVERY  IN  GERMANIC  SOCIETY 

(his  own  master)  and  the  Frankish  {Chamav.) 
Uberated  per  hantradem,^  who  was  free  but 
bound  in  obedience  to  a  patron,  have  much 
in  common  with  the  leysingr,  and  even  more 
with  the  northern  freedman  of  nondescript 
character  who  was  Hberated  skattalaust  oc 
skulda  but  under  pyrmslir.  In  regard  to 
the  Frankish  slave  hberated  per  hantradem, 
the  influence  of  the  church  upon  national 
customs  is  strangely  evident.  The  libera- 
tion (according  to  Sohm^)  consisted  in  an 
oath  taken  by  twelve  freemen  (among  them 
the  liberator  of  the  slave)  in  the  church 
while  holding  each  others'  hands  {hantradem 
=  handreichung) ,  certifying  that  the  slave 
henceforth  was  to  be  looked  upon  as  free. 
In  this  case  the  proper  place  for  such 
liberation  had  been  changed  from  the 
assembly  of   the  people  (malloberg)  to  the 

'Lex  Franc.  Cham.,  cc.  ii  and  12.  "Hantradem" 
appears  to  me  merely  an  awkward  translation  of  manumissio  = 
hant  (matju),  tradam  (miltam),  as  if  it  were  a  formula  which 
would  correspond  with  "se  ille  foris  de  eo  miserit  (sua  manu)." 
The  twelve  "compurgators"  are  necessary  as  witnesses, 
the  owner  manumits  himself  the  twelfth  person  in  the  party. 

'  Sohm,  Reichs-  und  Gerlchlsverfassung,  pp.  573  ff. 


LIBERATION  149 

church,  but  it  is  not  impossible  that  the 
liberty  of  the  freedman  suffered  in  conse- 
quence. 

In  the  North'  one  of  the  most  instructive 
phases  of  this  entire  social  movement  is  the 
slowness  of  upward  progress,  even  after  free- 
dom or  partial  freedom  had  been  obtained. 
Combined  political  and  economic  considera- 
tions favored  the  holding  the  freedman  down. 
Brilliant  exceptions  could  not  change  the 
general  attitude,  although  they  created  valu- 
able precedents.  Besides,  the  treatment 
of  the  slave  as  a  man,  and  making  him 
a  man  legally  and  socially,  called  forth 
new  feehngs  of  aversion  among  the  free;  the 

'  In  the  South  (on  the  Continent)  the  freedmen  were  far 
more  lost  among  the  mass  of  half-free  servants  and  laborers 
needed  to  maintain  the  large  centralized  estates.  As  the 
decades  went  by  a  large  number  of  them  found  their  proper 
place  without  very  great  friction;  the  development  of  feudal 
tenure  and  military  service  gave  them,  in  the  end,  economic 
independence  and  social  position,  and  they  ranked  among 
the  faithful  adherents  of  an  all-powerful  aristocracy,  until  they 
had  risen  so  high  as  actually  to  form  a  lesser  but  serviceable 
nobility.  There  is  another  side  to  the  career  of  the  freed  slave 
v/hich  is  chronicled  in  the  dreary  sameness  of  serfdom,  but 
this,  too,  is  fused  with  the  existence  of  the  free,  in  this  case 
the  unfortunate,  reduced  free. 


ISO      SLAVERY  IN  GERMANIC  SOCIETY 

coarser  differences  were  done  away  with,  the 
finer  remained  and  erected  a  barrier  which 
for  generations  held  the  freedman  outside  the 
pale  of  perfect  freedom.  To  the  free  popu- 
lation the  freedman  was  unwelcome.  He  was 
not  of  their  kith  and  kin;  he  had  risen  from 
the  lowest  of  lives;  he  was  an  outsider  who 
had  no  room  in  their  midst;  naturally  the 
more  insignificant  he  appeared,  the  longer 
he  remained  outside,  the  sooner  he  could 
hope  for  recognition.  Should  he  attempt 
to  force  himself  upon  them,  and  there  were 
no  special  reasons  for  making  an  exception, 
he  would  not  be  tolerated  at  all.  To  the 
master,  the  fee  received  could  not  compen- 
sate for  the  loss  of  a  permanent  laborer,  and 
the  slave  could  thus  not  be  said  to  have  really 
paid  for  his  freedom.  Freedom  was,  after  all, 
more  in  the  nature  of  a  gift  than  of  a  pur- 
chase, and  was,  also,  most  of  the  time  called 
by  that  name.  Accordingly  the  master,  in 
return  for  his  Hberal  behavior,  reserved  for 
himself  some  definite  consideration.  Pro- 
longed dependence,  therefore,  lasting  till  time 
had  leveled  differences,  till  dues  had  all  been 


LIBERATION  151 

paid,  and  a  tradition  created  in  behalf  of 
the  freedman,  was  the  only  natural  solution 
of  the  problem. 

In  spite  of  the  regulations  of  the  laws,  it 
must  even  be  doubted  whether  in  general — 
the  HH  and  aldii  excepted — the  grades  of  the 
conditionally  liberated  had  any  very  definite 
outlines;  whether  from  the  anndpugher,  who 
was  given  freedom  for  the  salvation  of  soul, 
but  who  was  otherwise  not  better  than  a 
slave,  to  the  ley  sin  gr,  over  whom  the  lord 
exercised  only  a  nominal  mundium  (though 
his  freedom  could  not  be  established  for 
twenty  years),  whether  in  each  and  every 
case  the  greatest  difficulty  for  the  freedman 
did  not,  after  all,  lie  in  the  indefiniteness  of 
the  position,  which  it  was  too  often  in  the 
arbitrary  power  of  the  free  to  change  for 
better  or  for  worse."  Where  was  his  unpreju- 
diced protector  to  be  found,  outside  of  the 
king  and  the  church?  The  lord  still  re- 
mained the  patron  until  the  Hberated,  by 

'  See  the  persistent  efforts  of  Thorolf  Haltfoot  to  harm 
and  finally  to  do  away  with  Ulfar,  the  freedman  (of  another 
chief),  because  Ulfar  happened  to  advise  Thorolf  wrongly  in 
some  small  matter  {Eyrbyggja  Saga,  cc.  8,  30-32.) 


152      SLAVERY  IN  GERMANIC  SOCIETY 

successive  generations,  had  established  a  state 
of  freedom,  or  had  founded  a  family,  or  had 
acquired  a  clearly  recognized  position.  It 
seems  as  if,  owing  to  these  circumstances,  the 
liberation  by  chart,  which  distinctly  deter- 
mined the  nature  of  the  freedom  given,  should 
have  been  much  preferred  and  popular  for 
this  same  reason.  For  this  practical  device, 
working  toward  order  and  fairness,  the  church 
is  to  be  thanked. 

How  clearly  the  popular  opinion,  and 
accordingly  the  laws,  distinguished  between 
the  highest  among  the  conditionally  liber- 
ated and  the  really  free  is  best  seen  in  the 
northern  laws,  but  it  also  appears  in  the 
conditions  on  the  Continent,  particularly  in 
the  marriage  relations.^  In  the  South,  where 
many  conditions  met,  the  power  of  the  king 
and  the  church,  and,  not  least,  the  increasing 
differentiation  of  society,  helped  to  make  the 

'  The  marriage  between  slave  and  free,  liberated  and  free, 
and  mixed  relations,  likewise  the  more  or  less  fluctuating 
rights,  or  loss  of  rights,  resulting  from  this,  only  further  con- 
firm this  view  of  the  matter.  The  question  has  been  so  exten- 
sively treated  by  Koehne  in  his  contribution  {Geschlechts- 
verhindnngen  der  Unfrcien)  to  Gierke's  Untersuchungen  that 
I  need  only  refer  to  this  book. 


LIBERATION  153 

difference  less  oppressive.  In  the  North, 
however,  where  society  was  more  of  one 
stamp  and  prejudices  wore  off  but  slowly,  the 
liberated  slave  had  to  travel  a  long  and 
tortuous  path  before  he  could  call  himself  an 
equal  of  the  free.  In  Norse  law  it  took  three 
generations  within  the  free  to  create  a 
family  in  the  sense  of  a  solitary  unit  of  rela- 
tions who  protected  and  supported.  The 
manumitted  slave  who  had  not  paid  his 
liberation  fee,  or  whose  freedom  had  not 
been  publicly  announced,  could  only  in  the 
fifth  generation  acquire  the  rights  and  free- 
dom of  a  leysingr,  the  one  who  completed 
all  necessary  formalities.  The  leysingr  again, 
under  normal  circumstances,  could  only 
become  fully  free  in  the  fifth  generation,^ 
while  only  the  eighth  generation  could 
speak  of  belonging  to  a  free  family.  Better 
guarded  from  the  intrusion  of  disagreeable 
elements  the  society  of  free  could  never  be; 
and  these  regulations  so  anxiously  preserved 

'  Although  his  condition  improved  from  the  second  genera- 
tion to  remain  thus  stationary  for  two  generations  more, 
forming  the  "family"  {aetl)  of  the  leysingr.  See  Maurer, 
pp.  58-66. 


154      SLAVERY  IN  GERMANIC  SOCIETY 

in  northern  laws  were  perhaps  once  common 
to  all  Germanic  nations. 

There  was,  however,  one  way  of  entering 
a  free  family  and  enjoying  its  privileges  and 
protection  at  once.  This,  as  already  indi- 
cated, consisted  in  the  freedman  being  intro- 
duced into  a  family  of  free.  In  fact,  the 
preservation  of  freedom  for  the  liberated 
was,  at  least  in  some  instances  in  the  earHest 
time,  dependent  upon  this  introduction.^ 
Without  this  the  freedman  had  no  guaranty 
that  the  liberty  granted  would  be  more 
than  a  passing  experience.  That  fact  may 
have  a  direct  bearing  on  the  condition  of  the 
above-mentioned  annbpugher.  This  method 
of  final  liberation  seems  to  be  preserved  only 
in  the  northern  laws,  though  it  may  once  have 
existed  in  Germanic  society  elsewhere.  That 
this  formal  introduction  was  by  no  means  a 
frequent  occurrence,  but  was  most  likely 
reserved  for  exceptional  cases,  such  as  the 
final  legitimation  of  a  slave-born  child  (of  a 
free  father),   is   evident    from    passages   in 

'  Amira,  Vol.  I,  p.  541  (where  the  necessary  references 
are  to  be  found). 


LIBERATION  155 

Norse  law,  where  the  ceremony  appears  in  its 
most  elaborate  form.  In  other  words,  we 
may  suppose  that  the  last  and  highest  grade 
of  liberation,  in  which  liberty  was  conferred 
absolutely  and  involved  privileges  of  mem- 
bership in  a  free  family,  was  confined  to 
the  occasional  freeing  of  such  illegitimate 
slave-born  children.  Historical  evidences 
show  that  all  through  the  history  of  Ger- 
manic life — the  family  of  the  free-born  being 
the  nucleus  and  mainstay  of  society — the 
child  born  of  a  slave  mother  had  no  place 
within  its  precincts.  Its  slave  birth  made 
it  unlit  for  association  with  free  members. 
On  the  other  side,  the  fact  of  its  semi-free 
parentage  offered  certain  redeeming  possi- 
bilities which  the  father  or  the  family  were  at 
liberty  to  make  use  of,  in  fact,  which  they 
were  sometimes  obhged  to  take  into  account. 
If,  for  instance,  the  mother  was  free  and  the 
father  a  slave,  she  had  the  power  to  make 
her  child  her  own  equal  if  she  wished.  In 
certain  laws  such  a  child  was,  by  virtue  of 
its  birth,  free.  Not  so,  however,  if  the 
mother  was  a  slave  and  the  father  free.    The 


156      SLAVERY  IN  GERMANIC  SOCIETY 

father  might  make  his  child  his  equal  only  if 
he  liberated  it  before  it  was  three  years  old.^ 
The  child  then  grew  up  as  its  father's  equal, 
possessing  liberty  without  any  restrictions 
of  independence.  But  even  such  a  child""  had 
not  all  the  rights  accorded  to  his  brothers. 
He  inherited  only  when  some  other  link  in  the 
chain  was  missing,  and  could  receive  gifts 
from  his  father  only  as  a  matter  of  condescen- 
sion after  the  consent  of  the  nearest  heir  had 
been  gained.  Full  rights  and  perfect  equality 
were  possible  to  him  only  if  the  father  or  the 
next  of  kin  decided  to  perform  in  his  behalf 
the  act  of  introduction. 

This  act  was  of  peculiar  and  ancient  type. 
It  took  place  in  connection  with  a  social 
gathering  and  required  the  slaughtering  of  an 
ox  and  the  brewing  of  a  sufhcient  quantity 
of  malt  into  beer.  From  the  skin  on  the 
right  forefoot  of  the  ox  was  to  be  made  a 
shoe.  The  formal  introduction  and  legitima- 
tion consisted  in  the  father  (or  whosoever 

'  G1>1.,  c.  57- 

=  GJ>1.,  c.  58.  The  change  in  age  in  this  chapter  suggests 
modification  in  demands  and  a  later  date,  at  least  for  this 
passage. 


LIBERATION  157 

else  was  called  upon  to  perform  the  act)  step- 
ping into  the  shoe,  after  him  the  one  who 
was  to  be  introduced,  then  the  nearest 
heir,  and  finally  the  rest  of  the  family, 
each  pronouncing  at  the  same  time  the 
appropriate  formula  which  indicated  the 
particular  meaning  of  the  ceremony. 

As  in  the  liberation  of  the  ordinary  slave 
this  legitimation  and  admittance  into  the 
family  was  also  to  be  made  public  during 
twenty  successive  years,  when  the  person 
thus  introduced  could  inherit,  and  with  the 
inheritance  could  assume  the  full  pubhcity 
of  his  membership.  The  laws  indicate, 
indeed,  that  any  illegitimate  child,  free  or 
unfree,  could  be  thus  benefited;  but  it 
appears  as  if  the  improvement  was  meant 
especially  for  the  slave-born  rather  than  the 
free-born  who  might  be  less  in  need  of  it. 
That  not  any  slave  (in  general)  who  might 
have  claim  upon  consideration  would  be 
thus  honored,  that  the  family  would  not  open 
its  bosom  to  welcome  any  but  him  who  had  a 
natural  claim  upon  its  protection,  seems 
clear  to  one  who  has  observed  the  exclusive 


158      SLAVERY  IN  GER^IAXIC  SOCIETY 

character  of  the  family  among  the  northern 
nations. 

But  however  forbidding  toward  the  in- 
truder, nowhere  else  does  the  family  show  its 
intention  to  better  the  condition  of  the  slave- 
bom  in  such  a  marked  and  intimate  way. 
This  last  step  upward  of  the  slave,  to  be  sure, 
was  largely  a  matter  of  chance,  although 
rather  sublime,  and  more  in  keeping  with 
the  real  needs  of  a  friendless  and  exploited 
being  than  the  gift  of  freedom  on  the  field 
of  battle  or  by  clashing  of  arms  in  the  Thing. 
And  with  this  his  final  rehabihtation  we  may 
fitly  conclude  our  review  of  the  vicissitudes 
in  the  career  of  the  slave. 


')1 

y 

'OJIl 

fcys 


iEUh 

3 

'1301 

'-2 

"3 


JBI 

J 

c 
Mi 

;4 


"^aaAiNn-^wv^       ^^JAiivaaiH^"^     %xwm\i^4' 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


■^^P  2  71977 
SEP    9191?- 

DISCHARGE-UR. 
Wn-D  I  nun, 


2  5  1990 
I?- 


liL 


APR  3  0  1984 


«^fo^  ^2'''^' 


30m-7,'70(N8475s8)— C-120 


liWLD ^  DEC  1  7  m\ 


^ 


# 


,* 


^ 


^^ 


m^ 


-~\\Ji    ^ru-l 


U^\ 


|"«.^         ,^Mit  UNivtKj/^       ^lOSAKC[lfj> 


1 


VA}i3MNI13\V^ 


58  00195  8551 


^xiuoNvsdi^^     '^Aa3MNn-3V^- 


^<!/03l 


^<?AHvaaiH'^ 


si\EUNIVER% 


'  I     1. 1 


^mmm-^ 


UC  SOUTHERN  RFRIONAt  (  IRRARY  FACILITY 


AA    000  926  352    6 


O 

T30 


wXlIBRARYQr.       <^iLIBRARYQr 


<0^u  i.ii^i»»  »•»  •  "^Z™.  Jl  f  •■\- 


>i. 


\m 


[•I 


